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TMI Blog2014 (10) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions of the sale. In my opinion, in this case, the sale and AMC cannot be said to be the result of composite contract. In such circumstances, the stand taken by the original adjudicating authority that the credit paid on sales commission is not admissible has to be upheld. However, at this stage learned C.A. submits that even the credit which was not taken by the appellant at all has also been included for the purpose of demand. He is not able to quantify the exact amount. Therefore, actual amount of credit taken has to be determined by the original adjudicating authority. In the case of sales contract and AMC, the appellant could have entertained a view that credit was admissible. Having regard to the type of item being sold and te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber, 2006 the appellant had rendered service to RBI which was exempted service, therefore they could not have availed Cenvat credit more than 20% of the service tax demand has been confirmed. 2. Learned C.A. points out that the service provided to RBI prior to 31-5-2006 was billed only in September 2006 and for the month of September 2006; there was no demand at all. He submits that this fact has been taken note of and accepted by the original adjudicating authority in Paragraph 18 of his order. 3. I find that in these circumstances, the demand of ₹ 18,90,324 is not sustainable and accordingly, the same is set aside. 4. Second demand is ₹ 11,80,160/- which has arisen because the Cenvat credit taken of service t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit was admissible. Having regard to the type of item being sold and terms and conditions of the sale, I consider that this is a fit case for considering waiver of penalty under Section 80 of the Finance Act, 1994. Accordingly, in the facts and circumstances, the penalty is set aside. 6. In the result, the impugned order is set aside as regards the demand of Cenvat credit on the basis of contravention of Rule 6(3) of Cenvat Credit Rules. The demand of Cenvat credit availed on sale commission has to be worked out on the basis of actual credit availed by the appellant. For this purpose, the matter is remanded to the original adjudicating authority. The appeal is decided in the above terms. (Order dictated and pronounced in open Court)< ..... X X X X Extracts X X X X X X X X Extracts X X X X
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