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TMI Blog2010 (12) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... nnection with the manufacture of the final product - Held that: Komatsu has made a strong prima facie case against the impugned demand and penalty - Decided in favour of the assessee - E/639/2010 - 956/2010 - Dated:- 20-12-2010 - Justice R.M.S. Khandeparkar, Shri P. Karthikeyan, JJ. REPRESENTED BY : Shri N. Venkataraman, Sr. Advocate, for the Appellant. Shri D.P. Nagendra Kumar, JCDR, for the Respondent. [Order per : P. Karthikeyan, Member (T)]. The impugned order demanded Rs. 61,44,78,463/- being cenvat credit found to have been irregularly availed by M/s. L T Komatsu Ltd., (Komatsu/appellants/assessee, hereafter) along with applicable interest. The Commissioner also imposed equal amount of penalty on the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avail credit of service tax paid on the commission paid to L T. It is submitted that the impugned activity was covered by the definition of input service contained in Rule 2(l) of Cenvat Credit Rules 2004 (CCR). In the inclusive part of the definition sales promotion was specifically listed. Moreover, the impugned tax was included in the value of the products, on which the assessee paid excise duty. This fact also indicated that the service involved was an input used in relation to the manufacture of the hydraulic excavators manufactured by the assessee. It is also submitted that as early as in September 2005, the appellants had furnished copies of the agreement entered into with L T and invoices showing payment of the commission and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho submitted that the assessee had paid commission and service tax on the commission subsequent to manufacture and clearance of the excisable goods. In terms of the definition of input service contained in Rule 2(l) of the CCR, only activities in relation to manufacture and clearance of excisable goods would constitute input service. The impugned order was passed in accordance with law. He vehemently opposed the stay application. 6. On a perusal of the case records and careful consideration of the submissions, we find that the Commissioner examined the agreement between the appellants and L T, and found that as per the agreement, L T were providing services as a selling agent to the assessee which included activities like identification o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an output service, or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and [clearance of final products upto the place of removal,] and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capita ..... X X X X Extracts X X X X X X X X Extracts X X X X
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