TMI Blog2022 (11) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... ion there are two components, one is service portion and other is sale of spare parts and lubricants. Since, the appellant admittedly paid the VAT on sale of spare parts and lubricants. It is clearly a sale purchase transaction and same cannot be part of the Gross value of the service of Authorized Service Station - the adjudicating authority ought not to have rejected the claim of the appellant regarding sale of spare parts and lubricants. From the judgments in CCE ST, MEERUT-II VERSUS SHRI KRISHNA SWAROOP AGARWAL [ 2014 (10) TMI 569 - CESTAT NEW DELHI] and AUTOMOTIVE MANUFACTURERS PRIVATE LTD VERSUS COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, NAGPUR [ 2015 (2) TMI 972 - CESTAT MUMBAI] , it is seen that various Benches of this Tribunal have taken a consistent view in the identical facts of the present case that where during the provision of Authorized Service Station Services, the spare parts and lubricants sold and VAT thereupon was paid the value of such spare parts and lubricants would not attract Service Tax. Demand of Service Tax on sales incentives given by M/s. Toyota Kirloskar Motors Pvt Ltd. to the appellant in connection with sale of their vehicles to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading being exempted service is effective only from 01.04.2011. Hence, the demand under Rule 6(3) on trading activity for the period 2007-08 to 2010-11 is wholly illegal and without any support of law - it is settled that demand under Rule 6(3) in respect of trading activity for the period upto 31.03.2011 is not sustainable. The legal position that emerges is that when an assessee reverses or pays back the amount of credit taken on the inputs/input services used in relation to the manufacture of particular final products or rendering services, such reversal or paying back of credit would result in a situation where the assessee was deemed to have not taken the credit at all. The further legal position that emerges from the above referred case law is that such reversal may be at the time of clearance of the goods from the factory, may be at a time subsequent to such removal of final products from the factory, or such reversal may also be after the Revenue initiated investigation and enquiries against the assessee in the matter. The appellant has calculated the aggregate amount of cenvat credit in respect of input services used in relation to trading business for the entire per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services used in the said three premises is clearly admissible. Demand raised in the show caused notice dated 23.10.2012 which was issued for the period 2007-2008 to 2010-2011 on the ground of limitation in respect of all the issues - HELD THAT:- The demand raised in show caused notice dated 23.10.2012 by invoking extended period is also not sustainable on the ground of limitation, for the reason that it is not established in respect of the issues in hand that the appellant have ever suppressed any fact or involved in fraud, mis-statement Collusion, etc. with intent to evade payment of duty therefore, in respect of show cause notice dated 23.10.2012 the demand for the extended period is clearly not tenable on the ground of limitation also. Appeal allowed - decided in favor of appellant. - SERVICE TAX Appeal No. 10665 of 2021 - FINAL ORDER NO.A/11179/2022 - Dated:- 30-9-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri P M Dave Amal Dave, Advocates for the Appellant Shri. Prabhat K. Rameshwaram, Additional Commissioner (Authorized Representative) for the Respondent ORDER This appeal is directed against Order In Original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts purchased from one M/s Savita Oil Technology Pvt. Ltd. The appellant in turn have been selling such spare parts and lubricants to their customers/clients of their authorized services station on payment of VAT for authorized services station services. The appellant have been issuing one bill to the customers, but the value of services is separately shown in the bill and Service Tax was paid thereon under authorized services station category, and the value of spare parts as well as lubricants were separately shown in the same bill and VAT or sale tax was paid on this component because this part of the transaction was considered to be sale of goods liable for payment of VAT/sales tax. The appellant have not availed Cenvat credit of spare parts and lubricants which were sold during providing the authorized Services station services to their customers. The appellant availed Cenvat credit of input services like Advertising service, Telecommunication services, banking services, Housekeeping services etc., and such credit was utilized for paying Service Tax for Authorized Service Station services, Business Auxiliary services (i.e. commission received of finance and insurance provided to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 3. STC/4- 66/O A/ 13-14 dated 13.5.2014 3,83,47,704 - 2,91,58,727 - 6,75,06,431 4. STC/4- 06/O A/ 15-16 Dated 23.4.2015 4,83,87,295 17,64,8 6 2 2,70,71,342 - 7,72,23,499 5. STC/4- 57/O A/ 15-16 Dated 28.1.2016 5,66,57,468 27,32,270 84,45,425 - 6,78,35,163 6. STCI4- 44/O A/ 16-17 dated 7.1 1.20J 7 7,49,65,872 25,94,455 33,38,333 - 8,08,98,660 7. STC/4- 101/lnfi/ O A/18- 19dated 7.11.2017. 12,46,50,854 24,59,390 - - 12,71,10,244 Total 41,94,01,463 96,65 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting details. The appellant under the covering letter dated 28.07.2016 submitted specimen bills and other accounting details. No further documents were ever called for thereafter, and the personal hearing for all 7 show cause notices was thereafter held after 4 years, on 23.09.2020, and during this hearing also the adjudicating Authority has not asked for all the bills of the Authorized Services Station for April, 2007 to June, 2017. He submits that if the Adjudicating Authority was not satisfied with the specimen bills submitted by the appellant. He could have asked for further details during the personal hearing, he submits that it is not a case where the adjudicating Authority called for such documents but the appellant deliberately did not submit the same. He further submits that all the details of spare parts and lubricants were submitted by the appellant during investigation, and the demand was worked out in each of the show cause notice on the basis of such bills only. It is also recorded in the impugned order that such details was submitted by the appellant. As regard the demand of Service Tax on commission under business auxiliary service. He submits that it is a settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educed or denied even if such service were attributable to trading activity, upto 31.03.2011. In support of his this submission, he placed reliance on the following judgments: My Car (Bhopal) Pvt. Ltd. 2019 (22) GSTL 273 (Tri.-Del.) Marudhan Motors 2017 (47)STR 261 (Tri. Del.) Avon International Pvt. Ltd. 2017 (5) GSTL 376 3.4 He further submits that it is a settled law that even though an assessee has not strictly complied with the procedure of Rule 6(3A) of the Cenvat credit Rules by submitting an intimation for proportionate reversal of Cenvat Credit of common inputs and input services attributable to the exempted final transactions, it is permissible to reverse proportionate credit in respect of exempted transactions, and in case of delay in such reversal, interest may have to be paid by the assessee on the Cenvat of common input/ input services, but demand of an amount equal to 5% or 7% of value of the exempted transactions is impermissible. He placed reliance upon the following judgments: Bombay Minerals Ltd. V/s. CCE, Rajkot 2019 (29) GSTL 361 (Tri.-Ahmed.) Welspun Corp. Ltd. V/s. CCE, Kutch 2019 (368) ELT 179 (Tri.-Ahmd.) Final Order No. A/12475 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction, we reproduce the relevant invoice for service of Authorized Service Station and spare parts and lubricant, the same is scanned below: From the above invoice it is observed that though the appellant have raised one invoice for service and sale of spare parts and lubricants, but both were clearly indicated separately in the invoice, and wherever there is service component, the Service Tax was charged and wherever there was sale of spare parts and lubricants the VAT was charged. It is clearly shows that during the provision of service of Authorized Services Station there are two components, one is service portion and other is sale of spare parts and lubricants. Since, the appellant admittedly paid the VAT on sale of spare parts and lubricants. It is clearly a sale purchase transaction and same cannot be part of the Gross value of the service of Authorized Service Station. The Adjudicating Authority in principle has not denied that the sale of spare parts and lubricants has not to be included in the Gross value of service, but he rejected the claim of the appellant only on the ground that the appellant have not submitted all the documents. We are in utter sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussion, we are of the considered view, that service tax on the value of parts used for repair and maintenance of vehicle is clearly not sustainable. The impugned order is set aside. The appeal is allowed. Tanya Automobiles (P) Ltd Vs. CCE ST, Meerut l -2016 (43) STR 155 (Tri.-All.) The appellant is an Authorized Service Station of Motor Vehicles. A. show cause notice dated 19-4-2012 was issued subsequent to audit during the December, 2010/January, 2011 wherein it appeared that the appellant was paying Service Tax on the labour charges only and not paying ST on value of spare parts and lubricants used in the course of servicing of the motor vehicles. It appeared to Revenue that the practice was not in tune under Rules 5 6 of Service Tax (Determination of Value) Rules, 2006 read with Section 67 of the FA read with C.B.E. C. Circular No. 96/8/2007-Service Tax. Further it appeared to revenue that the C.B.E. C. Circular No. 87/05/2006-Service Tax clarified that in respect of spare parts and consumables, which have been consumed during the process and are not available for sale, for availing such exemption in terms of Notification No. 12/2003-S.T., the goods m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 78 of the Finance Act. 4 . Being aggrieved, the appellant preferred an appeal before the Commissioner (Appeals), who vide the impugned order has been pleased to reject the appeal and has upheld the Order-in- Original. 5 . Being aggrieved, the appellant is in appeal before this Tribunal. 6 . The learned Counsel for the appellant urges that the issue is no longer res integra as the same stands settled by order of another Division Bench of this Tribunal in the case of Samtech Industries v. Commissioner of Central Excise - 2015 (38) S.T.R. 240 (Tri.-Del.), wherein the assessee was providing the service of repairing transformer and was using consumables like transformer oil and also component parts being coil etc., this Tribunal held, in view of the fact that it is not disputed that in respect of the supply of goods, used for providing of service of repair, Sales Tax/VAT is paid, which fact is evident from the invoice on record. It was also observed that when the value of goods used is shown separately in the invoice and on the same Sales Tax/VAT has been paid, the supply of the goods would have to be treated as sale and the transaction which are sale cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the cost of items supplied/sold and there is documentary proof specifically indicating value of the goods. In this situation in view of the Notification No. 12/2003-S.T., dated 20-6-2003 and Hon ble Supreme Court decision in the case of Commissioner v. Jain Brothers - 2012 (28) S.T.R. 162 (S.C.) demand of Service Tax against the party for the cost of goods supplied during repair does not appear sustainable. Therefore, the Board is of the view that in the overall facts and circumstances of the case, no purpose would be served in pursuing SLP in the matter. 6.3 He further urges that in view of the fact that Board have accepted the legal position and have not filed further appeal in the matter, the appeal is fit to be allowed. 7 . Heard learned DR, who supports the impugned order. On query from the Bench, as regards the matter has been settled in view of the Board s letter dated 27-9-2013, the learned DR submits that the Tribunal may pass appropriate order. 8 . Having considered the rival contentions and in view of the settled legal position in the case of Samtech Industries (supra), upholding the order of this Tribunal by the Hon ble High Court of Allahab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re have been incurred by the service provider as Pure Agents of the service recipient. However, this Rule has been struck down as ultra vires the provisions of Section 66 Section 67 of the Finance Act, 1994 by Hon ble Delhi High Court in the case of Intercontinental Consultants Technocrats Pvt. Ltd. v. Union of India Others Ltd. reported in 2012-TIOL-966-HC-Del.-ST =2013 (29) S.T.R. 9 (Del.). In view of this judgment of Hon ble Delhi High Court, the value of goods used for providing the service, which had been shown by the appellant separately in their invoices and on which Sales Tax/VAT had been paid, cannot be included for assessable value and no Service Tax can be charged on the same. The impugned orders, therefore, are not sustainable. The same are set aside. The appeals are allowed. Miscellaneous Application No. ST/Misc/60886/2013 for extension of stay in respect of Appeal No. ST/286/2012 also stands disposed of as the appeals itself has been allowed. The above decision has been upheld by dismissing the department s appeal by the Hon ble Allahabad High Court reported at Commissioner Vs. SamtechIndustries-2015 38 STR J 434 (Tri-All.) CCE ST, Meerut-ll Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto account the real nature and material facts of the transaction. Payment of VAT/Sales Tax on a transaction indicates that the said transaction is treated as sale of goods. Any goods used in the course of providing service are to be treated as inputs used for providing the service and accordingly, cost of such inputs form integral part of the value of the taxable service . Where Spare parts are used by a service station for servicing of vehicles, Service Tax should be levied on the spare parts, including the value of the spare parts, raised by service provider, namely, service station. However, the service provider is entitled to take input credit of Excise Duty paid on such parts or any goods used in providing the service wherein value of such goods has been included in the bill. The service provider is also entitled to take input credit of Service Tax paid on any taxable service used as inputs service for servicing of vehicles. (ii) The respondent did not show proof of sale of spare parts tothe service recipients. (iii) The Notification No. 12/2003-S.T. is not applicable as the value of spare parts/accessories is includible in the assessable value. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ude the cost incurred by them towards freight, loading, unloading, etc., as handling charges and pay sales tax on the goods on the value inclusive of handling charges. Sometime they sell the parts as such without undertaking any service/repair activity and in such cases also they collect handling charges and discharge the sales tax liability. The present demand is in respect of handling charges collected by the appellant as part of the value of the goods when a composite, activity of sale as well as services are involved on the ground that the handling charges are towards service charges and hence they are liable to Service Tax. The learned counsel submits that the handling charges form part of the value of the goods sold on which sales tax/VAT liability has been discharged and this is towards the freight/loading and unloading charges involved in handling of the automobile components procured from M/s. Maruti Udyog Ltd. and they have nothing to do with the service/repair of the motor vehicles of the Maruti Suzuki. As per the Board s Circular No. 96/7/2007-ST dated 23-8-2007 it has been clarified that Service Tax is not leviable on a transaction treated as a sale of goods and subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1994 mandate levy of service tax on a value or consideration received for rendering the services. Therefore, any consideration received for supply of goods is not covered within the scope of Section 67. The decisions of the Tribunal in the case of Ketan Motors Ltd. and Dynamic Motors, cited supra, also support this view. 6 . Accordingly, the impugned order is clearly unsustainable in law and therefore, the same is set aside with consequential relief, if any, in accordance with law. Ketan Motors Ltd. Vs. CCE ST, Nagpur-2014 (33) STR 165 (Tri.-Mumbai) 5 . We have carefully considered the rival submissions. As the issue lies in a narrow compass, after dispensing with the requirement of pre-deposit, we take up the appeal itself for consideration. 5.1 In para 3.2 of the impugned order it is stated that the appellant had furnished the following information and documents vide letter dated 21-9-2011: (i) Year wise details of value of spare parts used during the course of servicing of motor vehicles for the period 2006-07 to 2010-11; (ii) Copy of Balance Sheet, Profit Loss Account for the year 2006-07 to 2009-10; and (iii) Copy of ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l have taken a consistent view in the identical facts of the present case that where during the provision of Authorized Service Station Services, the spare parts and lubricants sold and VAT thereupon was paid the value of such spare parts and lubricants would not attract Service Tax. Moreover, in some of the judgments, even the fact that one common invoice was issued showing both service part and sale of spare parts with payment of VAT/sales tax, is absolutely same. In view of the above judgments, issue involved in the present case is squarely covered. Hence, the demand of Service Tax on the value of spare parts and lubricants is not sustainable in the present case. 5.3 The second issue is that the Adjudicating Authority confirmed the demand of Service Tax on sales incentives given by M/s. Toyota Kirloskar Motors Pvt Ltd. to the appellant in connection with sale of their vehicles to the appellant which were subsequently sold by the appellant to their customers. In this regard to arrive at the conclusion whether the incentive given by the seller of vehicle M/s. Toyota Kirloskar Motors Pvt Ltd. to the appellant being a purchaser of the vehicle what it is necessary to know the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of service tax on sales incentives if the appellant proves that incentive / discount was received for trading or buying and selling. The Commissioner (Appeals) held that the appellant had purchased the cars from M/s. Toyota Kirloskar Motor Pvt. Ltd. on their own account on payment of VAT and sold to the clients on payment of VAT. The Commissioner (Appeals) also held that the transaction was principal to principal basis and the service tax was not payable under the category of BAS. From the above, it is not in dispute about the transaction even in the present case being identical and sales incentive given by M/s Toyota Kirloskar Motors Pvt Ltd to the appellant is nothing but in connection with purchase and sale of the vehicles. Hence, the same can not be considered as commission against any service by any stretch of imagination. This issue has been considered time and again and it was held as under: CST, Mumbai l V/s. Sai Service Station Ltd. 2014 (35)STR 625 (Tri.-Mum.) 18 . In respect of sales/target incentive, the Revenue wants to tax this activity under the category of business auxiliary service. We have gone through the circular issued by MUL which provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l sale the goods at the price as determined by the Manufacturer. It shall not charge anything extra over and above the said price. The Manufacturers shall not be responsible for any loss of goods after it leaves the factory premises. Wholesale Distributor would be the owner of the goods once same are supplied to them by the manufacturer from the factory gate and the Wholesale Distributor shall take possession of the goods from the factory gate and shall transport the same to its godowns at its own expenses. It is observed from the above para that after supply of goods by the manufacturer the ownership of goods is transferred to the wholesale distributor who is the appellant here. The sales invoice raised by the manufacturer is scanned below: From the agreement coupled with the above invoice it can be seen that the transaction between the manufacturer M/s. Gunaji and the appellant is clearly of sale. In the invoice the manufacturer has charged 20% VAT the transaction is clearly at arms length hence sale transaction on principal to principal basis. From the invoice, it is also observed that a trade discount was passed on by the manufacturer to the appellant. As per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices, he has to pay 5%/6%/7% as applicable from time to time. In this regard we find that the demand on this count was raised for the period from 2007-08 to 2012-13. As per provision of Cenvat Credit Rule 6 it has application in case the assessee is providing taxable and exempted service. The trading activity in respect of which the demand was raised under Rule 6(3) under a fiction of law made exempted service only with effect from 01.04.2011 by insertion of explanation under Rule 2(e) by notification No. 3/2011-CE(NT) dated 01.03.2011. In view of this amendment it is clear that the trading activity was not defined as exempted service prior to 01.04.2011. Therefore, the trading activity not being an exempted service during period 2007 to 2011, Rule 6(3) cannot be made applicable during such period. It is a settled law that any statutory amendment cannot be made applicable retrospectively unless the effect of retrospective is enacted by the parliament. Therefore, trading being exempted service is effective only from 01.04.2011. Hence, the demand under Rule 6(3) on trading activity for the period 2007-08 to 2010-11 is wholly illegal and without any support of law. This very issue has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the stand to this effect vide Commissioner (Appeals) order No. 34/2013, dated 5-2-2013. 5 . Heard both the sides and perused record. The respondent has carried out, during the disputed period, the taxable service of authorized service station. They also carried out, from the same premises, the activity of trading of four wheelers. They have availed Cenvat credit of various input services which the Department has claimed has been utilized both for the taxable service as well as trading. The stand taken by the Department is that the activity of trading is to be considered as exempted service even though such activity has been specifically inserted as an exempted service only w.e.f. 1-4-2011 vide Notification No. 13/2011-C.E. (N.T.). 6 . Both the authorities below have taken the clear stand that the activity of trading has come under the category of exempted service only w.e.f. 1-4-2011 and the said amendment carried out to Cenvat Credit Rules cannot be considered as having any retrospective effect. Therefore, we find no reason to interfere with the impugned order. The appeal is accordingly dismissed. Marudhan Motors V/s. CCE, Jaipur-ll 2017 (47) STR 261 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onformity with the statutory mandates. Therefore, I do not find any merits in the impugned order and allow the appeal in favour of the appellant. CCE, Ghaziabad V/s. Avon International P. Ltd.-2017 (5) GSTL 376 (Tri.-All.) The present two appeals are arising out of same impugned Order-in-Appeal No. GZB-EXCUS-000-APP-11-14-15, dated 28- 4-2014. Therefore, they are taken together for decision. Appeal No. E/54591/2014 is filed by M/s. Avon International Pvt. Ltd. and Appeal No. E/53649/2014 is filed by Commissioner of Central Excise, Ghaziabad. M/s. Avon International Pvt. Ltd. have submitted compliance to interim order No. 05/2016, dated 27-1-2016. 2 . The brief facts of the case are that appellant-manufacturer was issued with show cause notice dated 28-3-2013 wherein there was allegation that during the period from April, 2010 to March, 2011 they have cleared raw materials such as plastic granules re-processed, Calcium/Mineral powder fabric and Glass on which they did not avail Cenvat credit and sold them and it appeared to Revenue that such activity was trading and therefore since Cenvat credit of Service Tax paid on inputs services had gone into activity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per this Rules there is a clear option that appellant is required to reverse/ pay back Cenvat Credit amount in accordance with formula laid down under Rule 6(3A) (c) (iii) of Cenvat Credit Rules, 2004, for such trading business and admittedly such amount has been worked out by the appellant in accordance with this formula and reversed/ paid back also. On the payment of such amount or reversal thereof demand of 6% of the value of trading activity is clearly not justified. This issue has been considered in various judgments some of the judgments are referred below: 5.6 Hello Minerals Water (P) Ltd. V/s UOI reported in 2004 (174) ELT 422 (All): This is a judgement rendered by Hon ble Allahabad High Court on this issue. In para 4 of the judgement, the Hon ble High Court of Allahabad has observed that the issue was whether reversal of credit after availment could satisfy the condition of non-availment of credit under the exemption Notification No. 15/94-CE dated 1.3.1994 involved in the said case allowed exemption from Central Excise duty on condition that no Modvat credit was availed on the inputs used in manufacturing of the final products. Considering various decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the assessee by directing the assessee to reverse Modvat credit availed for inputs utilized in manufacture of the exempted final products. Thus, in this landmark decision of the Appellate Tribunal, the exemption was allowed for coaches supplied to the Railways even though the appellant had taken credit of duties paid on the inputs on the condition that the appellant would reverse the credit pursuant to the direction of the Appellate Tribunal given while deciding the appeal finally. 5.9 A similar controversy came up before the Appellate Tribunal, Ahmedabad, in case of Maize Products and in the decision of the Appellate Tribunal, Ahmedabad, reported in 2007 (79) RLT 662, the Appellate Tribunal held that the demand on the basis of 8%/10% of the value of the exempted final products was not valid even if the assessee had taken Cenvat credit of duties paid on the inputs used in relation to manufacture of the exempted products because the assessee could reverse the amount of Cenvat credit even at a later stage. The assessee in that case was allowed to reverse amount of Cenvat credit within 4 weeks from the date of receiving communication from the Department as regards any short-f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation on the appellant had been to reverse/pay back amount equal to Cenvat credit attributable to input services used in respect of trading business. However, the appellant has paid back such proportionate Cenvat credit and therefore, the Adjudicating Authority has no authority in law to demand a substantially higher amount from the appellant by suggesting that payment was required to be made by the appellant at the rate of 6% of the trading business. The value of trading business is also incorrectly and erroneously arrived at by the Adjudicating Authority, and therefore also there is no justification in the demand of cenvat credit 5.15 The appellant has calculated the aggregate amount of cenvat credit in respect of input services used in relation to trading business for the entire period from April 2011 to March 2016. The value of trading is derived in accordance with the method prescribed under Clause-(c) of Explanation-I under Rule-6(3D) of the Cenvat Credit Rules. The term value is explained under this provision in case of trading as the difference between the sale price and the cost of goods sold (determined as per the generally accepted accounting principles without inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of C.EX., vs. Sai Sahmita Storages (P) Ltd.- 2011 (270) ELT 33 (A.P) Mundra Ports Special Economic Zone Limited 2015 (39) STR 726 (Guj.) In the above decisions the credit on Cement and Steel was allowed which were used for construction of premises of output service provider. Considering the above settled legal position, we are of the view that the appellant are entitled for Cenvat credit availed on Cement and steel used for construction of their show rooms where from the output service of authorized service station has been provided 5.20 As regard the denial of credit of Rs. 16,85,532/-out of Rs. 78,41,493/- the reason for denial is that this credit pertains to other premises i.e. Naroda, Himatnagar, Gandhidham which were not registered. However, it is observed that even though these premises were not registered but the output service provided for these services were admittedly suffered Service Tax payment. Therefore, merely because the premises are not registered the Cenvat credit cannot be denied on this ground, when the output service was provided on payment of Service Tax. This issue has been considered in the case of Manipal Advertising Services Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax provision and the same was covered by the various judgments as discussed ereinabove. As regard the demand under Rule 6 (3) we find that the appellant have been availing the Cenvat Credit on common input service used for taxable service as well as trading activity the detail of the cenvat was declared in their ST-3 return. They were also paying proportionate credit attributed to the trading activity during the applicable period. As regard, the Cenvat credit on cement and steel as discussed above, the appellant were of bonafied belief that the cenvat credit is available on cement and steel used for construction of show rooms which were in turn used for providing output service and admissibility of cenvat credit has been decided in their favour in the judgments cited above. In view of the above facts, it is clear that the demand raised in show caused notice dated 23.10.2012 by invoking extended period is also not sustainable on the ground of limitation, for the reason that it is not established in respect of the issues in hand that the appellant have ever suppressed any fact or involved in fraud, mis-statement Collusion, etc. with intent to evade payment of duty therefor, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
