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TMI Blog2019 (10) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted - HELD THAT:- This is apparently incorrect because not only had the Appellant contested this issue but had also enclosed the invoices. The procurement of the pollution equipment purchased by the Appellant is essential for provision of output service and therefore, the Appellant is entitled to take the credit. SMS Service Campaign - HELD THAT:- Advertisement of the Service Station of the Appellant is essential as it has to attract customers for servicing automobiles. It is not disputed that service station is not located at the place indicated by the Appellant. Hence, credit can be availed by the Appellant on service tax paid on advertising expenses. Courier Agency Services - HELD THAT:- The Adjudicating Authority could not have denied credit only for the reason that the invoices issued by the service providers did not contain the registration number - credit allowed. Mobile Phone Services - credit denied to the Appellant for the reason that the invoices against which credit was availed, were raised upon individual users of mobile phones (employees of the Appellant) and not the Appellant - HELD THAT:- The Department has not produced any evidence to rebut the presu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HON BLE MR. C.L. MAHAR, MEMBER (TECHNICAL) Mr. B.L. Narasimhan, Advocate for the Appellant Mr. Gyanendra Kumar Tripathi, Authorised Representative for the Respondent ORDER JUSTICE DILIP GUPTA These four appeals are directed against the orders passed by the Commissioner of Customs, Central Excise and Service Tax, Ghaziabad confirming the demand of service tax on certain services and disallowing Cenvat Credit on certain input services. The Commissioner has also directed for payment of interest and penalty. 2. The following chart indicates the period of dispute, the dates of show cause notices and impugned orders, the service tax demand and the Cenvat Credit denied for each of the four appeals: ST Appeal No. 472/2010 59279/2013 60272/2013 60721/2013 Period of Dispute April 2008 to March 2009 April 2010 to March 2011 April 2011 to September 2011 October 2011 to June 2012 Show Cause Notice 22 October 2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST/59279/2013) (vi) Security Services, Chartered Accountant Services, etc. (ST/472/2011 and ST/59279/2013) (vii) Consultancy Services (ST/472/2011 ST/59279/2013) (viii) Advertising Event Management Services (ST/472/2011) (ix) Manpower Recruitment Service, Test Inspection Certification Service, Architect Service, Insurance Service and other Repair Maintenance Services (ST/472/2011) 6. Shri B.L. Narasimhan, learned Counsel for the Appellant has submitted that the denial of Cenvat Credit on such input services is bad in law. Each of the aforesaid nine services on which Cenvat Credit has been denied are dealt with separately. 7. Repair and Maintenance of Audio System; (i). The Appellant claims to have repaired the audio systems of the cars that come for servicing to the Appellant. The contention of the Appellant is that this service is outsourced since the Appellant does not have the necessary infrastructure to repair the audio systems and it is for this reason that the Appellant has claimed credit. A sample copy of the invoice has also been enclosed with the memo of appeal. The impugned orders deny Cenvat Credit on this service for the reason that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Repair and maintenance service is one of the service considered in the aforesaid order of the Tribunal. In view of the aforesaid decision of the Tribunal, the Appellant is entitled to avail Cenvat Credit of service tax paid on repair and maintenance service. 8. Credit Availed On The Pollution Equipment Procured From M/s AVL India Pvt. Ltd. (ST/59279/2013) (i). The Appellant claims that credit was availed by the Appellant to the extent of 50% of the excise duty paid on the pollution equipment purchased by the Appellant which in fact were in the nature of capital goods. The Adjudicating Authority has denied the credit on the ground that the Appellant had not taken any defence and invoices had not been produced. The Appellant contends that the said allegation was suitably rebutted by the Appellant in the reply filed to the show cause notice and invoices had also been annexed as Annexure 13 to the reply. It is, therefore, contended that the finding recorded in the impugned order is perverse. (ii). According to the Appellant, the pollution checking devices classify as capital goods in order to avail the Cenvat Credit. The Appellant claims that it was imperative for it to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Services (CAS) (i). The Adjudicating Authority has denied the credit on the said service for the reason that invoices issued to the Appellant do not mention the service tax registration number of the service providers. (ii). The contention of learned Counsel for the Appellant is that mere absence of the service tax registration number in the invoice cannot be made a ground to deny availment of Cenvat Credit, particularly when the receipts have not been disputed by the Department and in support of this contention, learned Counsel has relied upon the decision of the Tribunal in Imagination Technologies India Pvt Ltd Vs. Commissioner of Central Excise, Pune-III 2011 (23) S.T.R 661 (Tri. Mumbai). (iii). Paragraph 6 of the aforesaid decision is reproduced below; 6. As regards the second issue regarding denial of Cenvat Credit on account of not indicating registration number of the input service provider on the invoices, this issue also has been settled by the decision of this Tribunal in the case of Secure Meters Ltd. (supra). In the said order, it was held that credit cannot be denied on the basis of invoices wherein registration numbers were not mentioned so long a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv). Copy of the invoices bear the name of the Appellant at the top left of the invoice, which clearly indicates that the same have been raised upon the Appellant itself. The Department does not dispute that the payment for the bills raised in regard to the service was made by the Appellant. (v) The Mobile Phone Service has been provided by the Appellant to its employees. This issue was examined by the Mumbai Tribunal in Ness Technologies (I) Pvt. Ltd. Vs. Commissioner of S.T. Division-V, Mumbai 2016 (41) S.T.R. 984 (Tri. Mumbai). In this case also the payment of the bills for use of mobile phones was by the assessee, but the credit was denied. The Department, however, did not dispute that the payments of the bills had been made by the assessee and not by the employees. It is for this reason that the denial of Cenvat Credit was found to be bad. The Tribunal held that when mobile phones were provided by the Appellant to its employees, the presumption would be that the same was provided for the purpose of provision of output service and unless properly rebutted, the said presumption would be justified. The relevant portion of the order is produced below; As regard telepho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are Cenvatable, inasmuch as the inclusive part of the definition is independent of its main part. No binding case law has been cited in support of this legal proposition. Therefore, I am of the considered view that the input service covered by the second part of the definition should satisfy the essential conditions laid down in the first part of the definition for the purpose of availment of CENVAT credit. In other words, it is necessary for the assessee to show that the services were used in or in relation to the manufacture or clearance of the final products, either directly or indirectly. This burden was not discharged in the present case as rightly held by the lower appellate authority. In the result, the appeal fails except in respect of mobile phone service. (vii). The Department has not produced any evidence to rebut the presumption that the mobile phones were used in connection with the business of the Appellant. (viii) In this view of the matter, the Appellant is clearly entitled to avail the credit for mobile phones since the mobile phones were provided by the Appellant and payment of the bills was also made by the Appellant. 12. Security Services And Char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and output service and that the amount incurred was reimbursed to the Appellant. (ii). This issue has again settled in favour of the Appellant in the earlier appeal filed by the Appellant which was decided on 27 December 2018. The Adjudicating Authority had placed reliance upon the order dated 3 May 2010 passed by the Adjudicating Authority, which order, as noticed above, was set aside by the Tribunal in its order dated 27 December 2018. The Appellant is, therefore, clearly entitled to avail the benefit of Cenvat Credit. 15. Manpower Recruitment Service, Test Inspection Certification Service, Architect Service, Insurance Service and other Repair Maintenance Services (i) The benefit of Cenvat Credit has been denied by placing reliance upon the earlier order dated 3 May 2018 passed by the Adjudicating Authority. This order dated 3 May 2018 was set aside by the Tribunal in the earlier appeal filed by the Appellant which was decided on 27 December 2011 and it was held that the Appellant would be entitled to the benefit of Cenvat Credit. (ii) The Appellant is, therefore, clearly entitled to take the benefit of Cenvat Credit. 16. The second issue dealt with in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IMS IS NOT LEVIABLE TO SERVICE TAX. (i). This issue pertains to the leviability of service tax on the amount received by an Authorised Service centre from the manufacturers of the vehicles for the free services rendered by them. A vehicle which is under a warranty and is required to be repaired comes to the Appellant for replacement of spares. The Appellant raises invoices upon M/s. TKML for realisation of the amount attributable to the free service rendered to the customer. The invoice separately shows the material portion as well as the service portion. The payment is reimbursed to the Appellant. The Department has raised a demand on this amount received by the Appellant from M/s. TKML. (ii) It is submitted by learned Counsel for the Appellant that the said amount is not leviable to service tax and reliance has been paid on a Circular dated 23 August 2007. (iii) The Adjudicating Authority has classified the service under clause-III of Business Auxiliary Service as customer care service provided on behalf of the client. (iv) It is sought to be contended by the Appellant that at best, in view of the aforesaid Circular dated 23 August 2007, the service can be cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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