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TMI Blog2016 (3) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... s specifically mentioned in the definition of “input service” . This issue has been discussed at length in its judgement in the case of Ambika Overseas (2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COUR) and Birla Corporation (2014 (6) TMI 385 - CESTAT NEW DELHI), wherein it has been held that this service is covered by the definition “input service” and would be eligible for cenvat credit. In view of this, the cenvat credit demand is also not sustainable. - Decided in favour of assessee Cenvat credit demand is in respect of the service received from the dealers who had provided repair and maintenance service during warranty period on behalf of the appellant to the customers - Held that:- The sale price of the air conditioners sold by the appellant to their consumers during the period of dispute included the warranty charges. There is no dispute that central excise duty had been paid on the value which included the warranty charges. During the warranty period, the appellant were under obligation to provide free repair and maintenance services to the consumers, who had purchased the air conditioners from them. However, instead of providing the free repair and maintenance service direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice provided by them to the Appellant as Business Auxiliary Service. The point of dispute is as to whether the appellant would be eligible for cenvat credit of the service tax paid on the services received by them from their sub-contractors. There is no dispute that the service received by the appellant from the sub-contractors is Business Auxiliary Service. The department is of the view that the appellant would not be eligible for cenvat credit of the service tax paid by the sub-contractors on the Business Auxiliary Service. The cenvat credit demand of ₹ 37,75,54,356/- is on this basis. 2. During the period of dispute, the appellant utilized the services of commission agents for procuring the sales orders for air-conditioners and they took cenvat credit of the service tax paid by the commission agents. The Department , however, is of the view that the commission agent s service is not covered by the definition of input service and would not be eligible for cenvat credit. The cenvat credit demand of ₹ 3,34,60,922/- is on this basis. 3. In respect of the air-conditioners sold by the appellant either directly to the consumers or through the dealers, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the definition of input service under its main definition clause, that the cenvat credit demand of ₹ 37,75,54,356/- is, therefore, without any basis, that the Commissioners observations in this regard in para-38 of his order that this service having been received after clearance of the goods is not eligible for cenvat credit is absolutely without any basis, as this service is an input for the repair and maintenance service under AMC being provided by the appellant and on which the appellant were paying service tax, that during the period of dispute, the appellant had paid total service tax of about ₹ 70.45 crores on their output service of post-warranty repair and maintenance of air conditioners under AMC, that as regards the cenvat credit of service tax paid by the commission agents in respect of service of procuring sales orders received by the appellant, this service is nothing but sales promotion which is specifically covered by inclusive portion of the definition of input service , that the Tribunal in the case of Birla Corporation reported in 2014 (35) STR 977 has held that the commission agent s service is covered by the definition of input service , e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enance Contracts. They were either providing this service directly and in those cases, there was no dispute, but in some case, they had engaged sub-contractors, who were providing the repair and maintenance service under Annual Maintenance Contract on their behalf. In such cases, sub-contractors have provided business Auxiliary Services to the appellant and the appellants have provided the post-warranty repair and maintenance service under AMC to the consumers. While the appellant were paying the service tax on the repair and maintenance service provided by them to the consumers, the sub-contractors were paying service tax on the amount received by them from the appellant for the Business Auxiliary Service being provided by them. The point of dispute is as to whether the appellant would be eligible for cenvat credit of the service tax paid on the Business Auxiliary Service received by them from their sub-contractors. There is no dispute that the appellant during the period of dispute were paying service tax on their output service on repair and maintenance under AMC Contract. In our view, the service received by the Appellant from these sub-contractors (Business Auxiliary Service) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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