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TMI Blog2022 (7) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case is that whether the appellant is entitle for Cenvat credit of services provided by them to the third party on free of cost basis. 02. Shri S.J.Vyas, learned counsel appearing on behalf of the appellant at the outset submits that the same issue in the appellant's own case has been decided by this Tribunal in their favour vide order no. A/10299-10300/2022 dated 31.3.2022 which is for the earlier period and this case is for the subsequent period, except the period there is no change in the facts and circumstances of the case. 03. Shri Dinesh Prithiani, learned Assistant Commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. 04. We have carefully considered the submissions made by both the sides and perused the records. We find that this issue is no longer res-integra as in the appellant's own case this tribunal vide order dated 31.03.2022 passed the following order:- 4. We have considered the rival submissions. We find that the issue regarding admissibility of cenvat credit on warranty service has been examined in detail by the Tribunal in the order in the case of M/s Case New Holland Construction Equipment (I) P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been contended that the appellant was justified in availing 11 E/52867/2018 CENVAT credit of the service tax paid by the appellant on 'maintenance and repair services'. 20. The issue, therefore, that arises for consideration in the present appeal is whether CENVAT credit of service tax paid by the appellant on 'repair and maintenance services' provided by the dealers for fulfilling the warranty obligations of the appellant has been denied for good and valid reasons. 21. To examine this issue, it would be necessary to reproduce the relevant portion of the definition of 'input service', as defined in rule 2(l) of the Credit Rules. Rule 2(l) was substituted by Notification dated 01.03.2011 w.e.f 01.04.2011 and it is reproduced below : w.e.f 01.04.2011 "2(l) "input service" means any service,- (i) used by a provider of output service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to modernization, renovation or repairs of a factory, premises of provider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in Carrier Airconditioning & Refrigeration and reliance was placed by the appellant on this decision when the matter was heard by the Tribunal for the earlier period from April 2011 to June 2015. It would, therefore, be appropriate to examine this decision of the Division Bench of the Tribunal. 25. The appellant therein was a manufacturer of air conditioners and was also providing service of 'repairing and maintenance' of the air conditioners sold to the customers either directly or through the dealers. The period of dispute in the appeal was from July, 2005 to May, 2012. In respect of the air conditioners sold by the appellant either directly or through the dealers to the customers, the appellant was under an obligation to provide free 'repair and maintenance service' during the warranty period of twelve months. This service, at the behest of the appellant, was being provided by the dealers and for the payments received by them from the appellant, service tax was paid by the dealers. The dispute that had arisen in the Appeal was whether the appellant could avail credit of the service tax paid by the dealers on the 'repair and maintenance service' provided by them to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [emphasis supplied] 26. In Honda Motorcycle & Scooter India, the same issue was considered by a Division Bench of the Tribunal. The appellant was engaged in the manufacture of motorcycles & scooters and had availed CENVAT Credit on inputs, capital goods and input services under the Credit Rules. The dispute was for the period June 2011 to March 2016. The Tribunal examined whether the appellant was justified in availing CENVAT credit on services received by the appellant from their authorized service stations with regard to repairs during the warranty period. The Tribunal held that the appellant was justified in availing the CENVAT credit on the service of repairs received from their authorized service stations during the period of warranty in view of the decision of 15 E/52867/2018 the Tribunal in Carrier Air conditioning & Regrigeration. The relevant portion of the decision is reproduced below : "8. We have heard both the sides and perused the record of the appeal. We feel that so far as the credit on services received by appellant from their authorized service stations with regard to free after sale services and repairs etc. of warranty period, the matter is no longer res-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "We have also perused the case laws citied by the appellant but find that the case laws have been rendered for the period prior to the 01.04.2011 when the definition of 'input service' was different. We find that these case laws are not applicable for the period under consideration." 30. A perusal of the decision of the Tribunal in Carrier Air conditioning & Refrigeration would indicate that it concerns the period from July 2005 to May 2012. The decision of the Tribunal in Honda Motorcycle concerns the period from June 2011 to March 2016. These decisions, therefore, cover the period prior to 01.04.2011 and post 01.04.2011 and are based on the 'means' part of the definition of 'input service' and have not considered the 'includes' part of the definition of 'input service. The decisions clearly hold that the services received from the dealers would be 'input service' used in or in relation to the manufacture of the final products. 31. The factual position in the Division Bench decisions of the Tribunal and the decision dated 24.11.2017 rendered by the Tribunal in the case of the appellant for earlier period is almost identical. It also needs to be noted that the decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute or other binding authority'. (Young vs. Bristol Aeroplane Co. Ltd12) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law." 36. The maxim 'per incuriam' is derived from the latin expression that means 'through inadvertence'. The literal meaning of the expression 'per incuriam' is 'through want of care'. In Black's Law Dictionary, 5th Edition, it has been defined as "through inadvertence". In Halsbury's Law of England Fourth Edition, Volume 26, it has been stated: "A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statue or rule having statutory force. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the court had not the benefit of the best ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit was being taken by the appellant therein either under the 'includes' clause or 'excludes' clause of the definition of 'input service', which portion had been amended whereas reliance had been placed by the appellant on the decisions which had interpreted the 'means' clause of the definition of the 'input service'. It was, therefore, clearly a case where that part of the statutory provision that should have been applied was ignored and that part of the statutory provision that was not relevant to the controversy was considered. When CENVAT credit was sought to be justified by the appellant under the 'means' clause, for which reliance was placed on the earlier decisions of the Tribunal, there was no necessity to examine whether it can be justified under the 'includes' clause or 'excludes' clause of the definition. The decision rendered by the Tribunal on 24.11.2017 is, therefore, clearly per incuriam. 41. It is, therefore, considered appropriate to follow the three decisions rendered by the Tribunal in Carrier Air conditioning & Refrigeration, Honda Motorcycle and Samsung India Electronics in preference to the later decision rendered on 24.11.2017, which has distinguished ..... X X X X Extracts X X X X X X X X Extracts X X X X
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