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TMI Blog2012 (2) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... ost of providing free after-sale services i.e. warranty charges are part of the price of the goods on which Central Excise duty had been paid. In view of this, Cenvat credit of Service Tax paid on the after-sale services cannot be denied - the appellant have a strong prima facie case and requiring the pre-deposit of the Cenvat credit demand, interest and penalty would cause undue hardship - Stay granted. - E/2072/2011 - Stay Order No. 491/2012-EX(BR)(PB) - Dated:- 1-2-2012 - Ms. Archana Wadhwa and Shri Rakesh Kumar, JJ. Shri Nikhil Agarwal and Dheeraj Srivastava, Advocates, for the Appellant. Shri S.K. Panda, Jt. CDR, for the Respondent. ORDER The appellants are manufacturers of Hydrolic Mobile Crane, Loaders and Cranes fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty on the appellant under the provisions of Rule 15 of the Cenvat Credit Rules, 2004. The show cause notice was adjudicated by the Commissioner vide Order-in-Original dated 6-5-2011 by which the Cenvat credit demand of Rs. 1,38,21,621/- was confirmed along with interest and besides this, penalty of equal amount was imposed on the appellant under Rule 15(2) of the Cenvat Credit Rules, 2004. The demand was confirmed by invoking extended period under proviso to Section 11(1) of Central Excise Act, 1944. Against this order of the Commissioner, this appeal along with stay application has been filed. 2. Heard both the sides. 3. Shri Nikhil Agarwal and Shri Dheeraj Srivastava, Advocates for the appellant, pleaded that after-sale service during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. 4. Shri S.K. Panda, learned Joint CDR opposed the stay application by reiterating the findings of the Commissioner (Appeals) in the impugned order and emphasized that the (a) service of sale repairs/maintenance during warranty period of the goods sold, received by the appellant has no nexus with the manufacture of the goods and hence, the same is not covered by the definition of input service and in this regard, he relies upon the judgment of the Tribunal in the case of Ultratech Cement Ltd. v. C.C.E., Bhavnagar reported in 2007 (6) S.T.R. 364 (Tribunal-Ahmd.); and (b) since the service has been received after removal of the goods, the same is not covered by the definition of input services . He, therefore, pleaded tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, and, therefore, it would be covered by the expression activities relating to business and hence, by the definition of input service , and for this reason also, the same would be covered by the definition of input service . The judgment of the Tribunal in the case of Ultratech Cement Ltd. reported in 2007 (6) S.T.R. 364 (Tribunal-Ahmd.) cited by the ld. Departmental Representative is not applicable to this case. 6. We are, therefore of the view that the appellant have a strong prima facie case and requiring the pre-deposit of the Cenvat credit demand, interest and penalty would cause undue hardship. In view of this, the requirement of pre-deposit of Cenvat credit demand, interest and penalty is waived for hearing of the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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