9911796707
TMI Blog2019 (2) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... eals are arising out of the common issues, therefore, both the appeals are decided by a common order. 3. The brief facts of the case are that an audit team conducted in the appellant's unit in September, 2007 and noticed that the appellant has wrongly availed Cenvat credit and has not paid service tax under the category of Business Auxiliary Service. Therefore, two show cause notices for the period October,2003 to March, 2008 and April, 2009 to March, 2010 were issued to deny the credit inadmissible to the appellant and to demand service tax under the category of Business Auxiliary Service. The matters were adjudicated and the demand on account of service tax under the category of Business Auxiliary Service and denial of credit on various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e credit sought to be denied on the above services on the ground that these services has no nexus with manufacturing activities of the appellant, therefore, they do not qualify as input service as per Rule 2(l) of Cenvat Credit Rules, 2004. We have seen that the credit cannot be denied to the appellant as all these services has been availed by the appellant in the course of their business of manufacturing in terms of the decision of Hon'ble Bombay High court in the case of Ultratech Cement Ltd.-2010 (260) ELT 369 (Bom.) wherein it was held hat any service availed by the assessee during the course of their business of manufacturing, the assessee is entitled to avail credit. Therefore, on this ground, the credit cannot be denied to the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice, therefore the demand is not sustainable as the adjudicating authority has gone beyond the scope of show cause notice. Moreover, when there are two categories of services, therefore, the demand cannot be confirmed by invoking the extended period of limitation. It is a fact on record that for the period October, 2003 to March, 2008, the show cause notice was issued to the appellant on 30.3.2008, therefore, the said demand is barred by limitation. (ii) The demand sought to be confirmed on account of commission as insurance pay out from insurance companies and banks during the period October, 2003 to March, 2008 under the category of Business Auxiliary Service. 8. We find that it is the contention of the appellant that the appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Station from the manufacturers of the vehicles for the free services rendered by them under-warranty which is required to be repaired if the vehicles comes to the appellant. The appellant undertakes replacement of spares and render services thereon and raised invoices upon M/s.TKML towards realization of the amount attributable to the said free service rendered to the customer. The said invoice separately shows the material portion as well as service portion and the same is reimbursed to the appellant. The demand has been raised by the on this amount received by the appellant from M/s.TKML. The said demand is not sustainable in terms of Circular No.96/7/2007-ST dt.23.8.2007 wherein the position has been explained, which is extracted belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value added tax on goods used in the repairing process. It was in this factual background, on which there is no dispute, that the Tribunal held that Service Tax could not be demanded on that component representing the value of the goods and materials used for carrying out repairs. The mere fact that the cost of the various items was shown for the purpose of price variation was held not to make any difference to the legal position." 11. Further as per CBEC circular No.96/7/2007-ST dt.23.8.2007, wherein it has been clarified as under:- "Service tax is not leviable on a transaction treated as sale of goods and subjected to levy of sales tax/VAT. Whether a given transaction between the service station and the customer is a sale or not, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Such amount of discount which cannot be held Business Auxiliary Service in terms of Section 65 (19) of the Finance Act, 1994 as the appellant is not promoting or marketing or selling the goods on behalf of their client. In fact, the appellant is marketing their own goods as the appellant is the owner of the goods in question. The said issue dealt with by this Tribunal in the case of Sai Service Station Ltd.-2014 (35) STR 625 (Tri.-Mum.) wherein such sales incentives granted by the manufacturers to the dealers have been held out of ambit of service tax. Therefore, we hold that the demand of service on this ground is not sustainable against the appellant. 14. We further take note of the fact that the extended period of limitation is not i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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