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TMI Blog2022 (11) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... rged and wherever there was sale of spare parts and lubricants the VAT was charged. It is clearly shows that during the provision of service of Authorized Services Station there are two components, one is service portion and other is sale of spare parts and lubricants. Since, the appellant admittedly paid the VAT on sale of spare parts and lubricants. It is clearly a sale purchase transaction and same cannot be part of the Gross value of the service of Authorized Service Station - the adjudicating authority ought not to have rejected the claim of the appellant regarding sale of spare parts and lubricants. From the judgments in CCE ST, MEERUT-II VERSUS SHRI KRISHNA SWAROOP AGARWAL [ 2014 (10) TMI 569 - CESTAT NEW DELHI] and AUTOMOTIVE MANUFACTURERS PRIVATE LTD VERSUS COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, NAGPUR [ 2015 (2) TMI 972 - CESTAT MUMBAI] , it is seen that various Benches of this Tribunal have taken a consistent view in the identical facts of the present case that where during the provision of Authorized Service Station Services, the spare parts and lubricants sold and VAT thereupon was paid the value of such spare parts and lubricants would not attract Service Tax. De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat any statutory amendment cannot be made applicable retrospectively unless the effect of retrospective is enacted by the parliament. Therefore, trading being exempted service is effective only from 01.04.2011. Hence, the demand under Rule 6(3) on trading activity for the period 2007-08 to 2010-11 is wholly illegal and without any support of law - it is settled that demand under Rule 6(3) in respect of trading activity for the period upto 31.03.2011 is not sustainable. The legal position that emerges is that when an assessee reverses or pays back the amount of credit taken on the inputs/input services used in relation to the manufacture of particular final products or rendering services, such reversal or paying back of credit would result in a situation where the assessee was deemed to have not taken the credit at all. The further legal position that emerges from the above referred case law is that such reversal may be at the time of clearance of the goods from the factory, may be at a time subsequent to such removal of final products from the factory, or such reversal may also be after the Revenue initiated investigation and enquiries against the assessee in the matter. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said premises was admittedly on payment of Service Tax. Therefore, the credit availed in respect of input/input services used in the said three premises is clearly admissible. Demand raised in the show caused notice dated 23.10.2012 which was issued for the period 2007-2008 to 2010-2011 on the ground of limitation in respect of all the issues - HELD THAT:- The demand raised in show caused notice dated 23.10.2012 by invoking extended period is also not sustainable on the ground of limitation, for the reason that it is not established in respect of the issues in hand that the appellant have ever suppressed any fact or involved in fraud, mis-statement Collusion, etc. with intent to evade payment of duty therefore, in respect of show cause notice dated 23.10.2012 the demand for the extended period is clearly not tenable on the ground of limitation also. Appeal allowed - decided in favor of appellant. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri P M Dave Amal Dave, Advocates for the Appellant Shri. Prabhat K. Rameshwaram, Additional Commissioner (Authorized Representative) for the Respondent ORDER This appeal is directed against Order In Original No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Savita Oil Technology Pvt. Ltd. The appellant in turn have been selling such spare parts and lubricants to their customers/clients of their authorized services station on payment of VAT for authorized services station services. The appellant have been issuing one bill to the customers, but the value of services is separately shown in the bill and Service Tax was paid thereon under authorized services station category, and the value of spare parts as well as lubricants were separately shown in the same bill and VAT or sale tax was paid on this component because this part of the transaction was considered to be sale of goods liable for payment of VAT/sales tax. The appellant have not availed Cenvat credit of spare parts and lubricants which were sold during providing the authorized Services station services to their customers. The appellant availed Cenvat credit of input services like Advertising service, Telecommunication services, banking services, Housekeeping services etc., and such credit was utilized for paying Service Tax for Authorized Service Station services, Business Auxiliary services (i.e. commission received of finance and insurance provided to the appellant s customer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring on behalf of the appellant submits that as regard the demand on inclusion of value of speare parts and lubricant in the gross value of service of authorized services station of motor vehicle, and demand of service tax on such spare parts and lubricants. It is a settled legal position that the description, quantity and value of such parts having been shown separately in invoices and VAT having been paid thereon, it amounts to sale of good. Such transaction is not to be considered as a part of the taxable service. Even in case of servicing and repairing of other equipment and machinery, it was consistently held by this Hon ble Tribunal that spare parts, components etc,.used while providing services and repairing, was a separate transaction of sale attracting liability of VAT and use of parts, Components etc,. during repairing and such services cannot be considered as a part of the overall service, but it was a separate transaction of sale of goods. In support he placed reliance on the following judgments: Star Motors 2017 (5) GSTL 306 Tanya Automobiles (p) Ltd. -2016 (43) STR 155 (Tri.- Ahmd) Samtech Industries 2015 (38) STR 240 (Tri.-Del) Samtech Industries- 2015 (38) STR j434 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness auxiliary service category was not chargeable. He placed reliance on the following judgments: Sai Service Station Ltd. 2014 (35) STR 625 (Tri.-Mumbai) Jaybharat Automobiles Ltd. 2016 (41) STR 311 (Tri.- Mumbai) Toyota Lakozy Auto Pvt. Ltd. 2017 (52) STR 299 (Tri.-Mumbai) Rohan Motors Ltd. 2021 (45) GSTL 315 Prabhakar Marotrao Thaokar Sons 2019 (20) GSTL 294 OIA No. 428/2012/COMMR(A)/RBT/RAJ dated 16.07.2012 passed by the Commissioner (Appeals), Rajkot, in case of M/s. Navneet Motors Pvt. Ltd. OIA No. RBT/183/2011 dated 26.04.2011 passed by the Commissioner (Appeals), Mumbai in case of M/s. Shreenath Motors Pvt. Ltd. 3.2 He further submits that for raising the demand on discount, the Learned Commissioner has made factual error in as much as he has held that the appellant have not produced a copy of the agreement between them and M/s Toyota Kirloskar, and it could not be established by mere statement (in absence of the agreement of that the relation between them was on principle to principle basis). He submits that it is an admitted position of fact that the appellant was an authorized dealer of M/s Toyota Kirloskar, and that the appellant was trading in Toyota vehicles. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led the Cenvat credit on cement and steel under bonafide belief. The issue is of interpretation of Cenvat provisions, therefore in the absence of any mala fide intention the penalty corresponding to the Cenvat credit reversed on cement and steel was wrongly imposed. 3.6 He submits that the Adjudicating Authority has violated the principals of natural justice in as much as, he has not considered various submissions and explanations were put forth in the replies and during the personal hearing despite this if the Adjudicating Authority wanted any documents in support of such submission the same would have been provided to the Adjudicating Authority but instead of doing so the Adjudicating Authority arbitrarily decided the case against the assesse. The Learned Counsel, post hearing as asked by the Bench, submitted some sample copies of invoices in respect of purchase and sell of vehicles from M/s. Toyota Kirloskar and to their customers, which is taken on record. 4. Shri Prabhat K. Rameswaram, Learned Joint Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 5. We have carefully considered the submissions made by both the sides and peruse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant regarding sale of spare parts and lubricants. We find that the appellant have also produced Chartered Accountant certificate along with Annexure 1 which is reproduced below: From the above Chartered Accountant certificate which is based on the various accounting document such as invoices, books of accounts of the appellant clearly shows that the spare parts and lubricants were sold by the appellant and on which the appropriate VAT tax was paid. This gets further established that the appellant have filed VAT return regularly, which is evident from form 304 submitted under VAT Act copy of the same was submitted along with the copy of paper book submitted on 6 july,2022. From all these documents which are not in dispute, the fact that the appellant have sold the spare parts and lubricants and VAT was paid thereupon is clearly established. Therefore, the sales portion of spare parts and lubricants will not attract Service Tax as held in various judgments, some of the judgments are cited below: Star Motors Vs. CCE, Nagpur- 2017(5) GSTL 306 (Tri.-Mumbai) 4 . We have carefully considered the submissions made by both the sides. On perusal of the sample invoice of the authorized serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices/bills raised by them, then by virtue of Notification No. 12/03-S.T. exemption is available to the extent of value of the goods and materials sold by the service provider to the service recipient, subject to the documentary proof of such sale exists and no credit of Central Excise duty paid on consumables and spares has been taken. It was further observed that the appellant is not entitled to benefit of Notification No. 12/03 as they are not issuing separate invoices for sale of spares. It further appeared to the Revenue that the spare parts and consumables utilized in the course of servicing of vehicles without which the service is not complete and hence an integral part of service. Accordingly, Service Tax was proposed to be levied on the amount relatable to spare parts and lubricants for the extended period October, 2006 to December, 2011 amounting to Rs. 5,81,935/- with interest and further proposal of penalty under Sections 76, 77 78 of the Finance Act. 2 . The appellant contested the show cause notice by filing a written submission pointing out that they are showing the spare parts and lubricants separately in the invoice on which VAT/Sales Tax is being paid and on se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Others - 2013 (29) S.T.R. 9 (Del.), it is categorically held that the value of goods used for providing the services which have been shown separately in the invoice, on which Sales Tax/VAT has been paid, cannot be included in assessable value and no Service Tax can be charged on the same. 6.1 The learned Counsel draws our attention to the finding of the Commissioner (Appeals), wherein it is observed as follows : - I observe that the appellants are paying Service Tax on labour charges, i.e. servicing components of the bills and paying VAT on value of the spare parts and consumable and lubricants. I have perused copies of two sample bills enclosed with the appeal and find that the consumables e.g. gasket, filter, components, busing etc. are shown sold along with the service, are in the nature of integral part of the service. Accordingly, he urges that in view of the categorical finding that the appellants have charged the spare and lubricants separately in their invoice and have paid Sales Tax on the same, no Service Tax can be demanded and the learned Commissioner (Appeals) has erred in holding that Service Tax is applicable on the goods and lubricants observing that the service is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons from both the sides and perused the records. The appellants provided the services of repair of transformers to their customers and in course of repair, they used various parts and consumables like transformers oil, for which separate amounts were shown in the invoices. The invoices issued by them show the value of the goods used and the service charges separately. The amounts charged for various parts like HV/LV oils and transformer oil are as per the rates specified in the contracts. It is not disputed that in respect of the supply of the goods used for providing the service of repair, Sales Tax/VAT is paid. This fact is clear from the invoices placed on record. In view of this, the appellants contracts with their customers have to be treated as split contracts for supply of goods and rendering the service. When the value of the goods used has been shown separately in the invoices and Sales Tax/VAT has been paid on the same, the supply of the goods would have to be treated as sale and the transactions which are sale, cannot be the part of service transaction. In view of this, we hold that Service Tax would be chargeable only on the Service/Labour charges i.e. on service compon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used during servicing of the vehicles. Adjudicating authority confirmed the demand amounting to Rs. 11,83,832/- along with interest and mandatory penalty. The Commissioner (Appeals) set aside the said Order-in-Original on the following grounds. (i) Under Section 67 of the Finance Act, the taxable value is the gross amount charged for the taxable service. (ii) Even in terms of Notification No. 12/2003-S.T., the value of the goods and materials sold by the service provider to the recipient of service is exempt from the Service Tax. (iii) As per the C.B.E. C. Circular No. 699/15/2003-CX, dated 5-3-2003 the price charged by authorised service station for engine oil, gear oil and coolants, etc., is towards the sale of these consumables to the customer. Therefore, the sale of consumables during course of providing service is akin to sale of parts/accessories and therefore value of such consumables is not includible in the value of taxable services provided value of such consumables is shown separately. (iv) The respondents had provided to the Commissioner (Appeals) their assessment orders of the Trade Tax department, Moradabad, for the financial years 2006-07 2007-08 showing sale value o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f levy of Service Tax is the gross amount charge for taxable service. Thus, we do not find any merit in the Revenue s appeal which is hereby quashed. Automotive Manufacturers Pvt. Ltd. Vs. CCE Nagpur-2015 (38) STR 1191 (Tri.-Mumbai) The appeal arises from Order-in-Revision No. 04/2009/ST/C, dated 31-7-2009 passed by the Commissioner of Central Excise Customs, Nagpur. 2 . Vide the impugned order, the learned Commissioner has confirmed a service tax demand of Rs. 4,86,299/- along with interest thereon apart from imposing penalties under Sections 76, 77 and 78 of the Finance Act, 1994 on the appellant, M/s. Automotive Manufacturers Private l.td., Nagpur, by setting aside the order of the adjudicating authority vide order No. 90/STC/2007-08 dated 13-3-2008. Aggrieved of the same, the appellant is before us. 3 . The learned counsel for the appellant submits that the appellant is an authorised dealer of MarutiUdyog Ltd., and are registered with the department as an authorised service station for Maruti cars and they have been discharging/Service Tax liability on servicing/repairing of the vehicles undertaken by them. While repairing or servicing of the vehicles, they also sometimes used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating authority had examined this matter at length in his order dated 13-3-2008 and had concluded that the handling charges are part of the sale value of the goods on which sales tax/VAT liability has been discharged and hence not leviable to sales tax. This also supports the proposition that the impugned demands are not sustainable. 4 . The Dy. Commissioner (AR) appearing for the Revenue reiterates the findings of the Revisionary authority and submits that since the handling charges are service rendered, service tax is leviable and accordingly, seeks to sustain the demands. 5 . We have carefully considered he submissions made by both the sides. We notice that the appellant are charging handling charges whenever automobile parts are sold either independently or part of the service and repair of automobiles. In both the situations, invoice are issued for the sale of the goods as well as for collection of service charges for the services rendered. Handling charges were incurred in connection with the procurement of the goods and are included in the value of the goods sold and sales tax/VAT liability is discharged on the value inclusive of the handling charges. Therefore, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial facts of the transaction. Payment of VAT/sales tax on a transaction indicates that the said transaction is treated as sale of goods . 5.3 From the reading of the above circular, it would appear that even in a case of composite transaction involving sale of goods and rendering of service, if the bill/invoices issued clearly shows payment of sales tax/VAT on the spare parts, then the value of such spare parts would not be includible in the gross consideration received for rendering of service. The Commissioner has not considered these submissions made by the appellant and also the clarifications issued on the matter. Therefore, we are of the considered view that the matter has to go back to the adjudicating authority for fresh consideration. First of all, all the transactions involving only sale of spare parts should be excluded for the purpose of computation of service tax demand. Secondly, even in a case where the transaction involves both sale of spare parts and also rendering of service, the value of sale of spare parts should be excluded if sales tax/VAT liability has been discharged on such sales as is evident from the invoices/bills issued in this regard. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inium Motors Pvt Ltd to their customers: From the above invoices, it is clear that transaction between M/s. Toyota Kirloskar Motors Pvt Ltd., and the appellant is of purchase and sale of the vehicles on principal to principal basis and in turn the same vehicle purchased by the appellant was sold by the appellant to the customers on principal to principal basis and not on behalf of M/s Toyota Kirloskar Motors Pvt Ltd. Therefore, the appellant in this transactions is not an agent of M/s. Toyota Kirloskar Motors Pvt Ltd but a buyer of goods. In the course of this trading activities the seller M/s Toyota Kirloskar Motors Pvt Ltd. gives incentive to the appellant on the basis of quantum vehicles purchased by them from M/s Toyota Kirloskar Motors Pvt Ltd. This incentive is nothing but trade/ quantity discount against the purchase of the vehicle by the appellant from M/s Toyota Kirloskar Motors Pvt Ltd. This fact is not under dispute. 5.4 From the record, it is observed that this issue had been raised earlier also in the appellant s own case by the department, wherein the Commissioner (Appeals) has passed an Order having Order-in-Appeal No. AHM-SVTAX 000-APP-66-16-16-17 dated 11.08.2016 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turers provide discount schemes to dealers. Such transactions cannot fall under the service category of Business Auxiliary Service when it is a normal market practice to offer discounts/institutions to the dealers. The issue is settled in the case of Sai Service Station (supra). Therefore, we reject the appeal of the department. Rohan Motors Ltd. V/s. CCE, Dehracun- 2021(45) GSTL 315 (Tri.- Del.) 10 . As noticed above, the appellant purchases vehicles from MUL and sells the same to the buyers. It is clear from the agreement that the appellant works on a principal to principal basis and not as an agent of MUL. This is for the reason that the agreement itself provides that the appellant has to undertake certain sales promotion activities as well. The carrying out of such activities by the appellant is for the mutual benefit of the business of the appellant as well as the business of MUL. The amount of incentives received on such account cannot, therefore, be treated as consideration for any service. The incentives received by the appellant cannot, therefore, be leviable to service tax. Prabhakar Marotrao Thaokar Sons V/s. CCE, Nagpur-2019 (20) G.S.T.L 294 (Tri.-Mum.) 4.On careful con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed. From the above judgments, it is evident that the fact of the present case and that of the cases cited above as well as the nature of transactions i.e. purchase and sale of the goods are identical and it was consistently held that any incentive/discount given by the motor vehicle manufacturer as a seller of vehicle to the dealer as purchaser of the vehicle will not amount to Commission under Business Auxiliary Service. Therefore, the same being not consideration of any service shall not be liable to Service Tax. Following the above judgments and discussion made by us hereinabove, we are of the considered view that the incentive given by M/s Toyota Kirloskar Motors Pvt Ltd to the appellant is not an amount of commission but being a trade discount is not liable for Service Tax. 5.4 The Adjudicating Authority also confirmed demand of an amount equal to 5%/6%/7% of the value of trading activity in terms of Rule 6(3) of Cenvat Credit Rules, 2004, on the ground that the appellant have availed Cenvat credit in respect of common input service, which is used for their taxable services as well as exempted services namely trading activity of the vehicles, spare parts etc,. Consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(3A) of the Cenvat Credit Rules. In this connection, Department was of the view that the activity of trading, which was also carried out by the appellant from the same premises, in addition to carrying out the service of authorized service for four wheelers, is to be considered as an exempted service but both the authorities below dropped the demand and, hence, the Revenue is in appeal before us. 3 . With the above background, we heard Shri Amresh Jain, Learned DR for Revenue and Shri Milind Sharma Learned C.A. for assessee. The Learned DR submitted that the activity of trading has been specifically included as an exempted activity w.e.f. 1-4-2011 by way of amendment carried out in the Cenvat Credit Rules, 2004 vide Notification No. 13/2011-C.E. (N.T.), dated 31-3-2011. He argued that the activity of trading has to be considered as an exempted service even for the disputed period i.e. 1-4-2010 to 31-3-2011. 4 . The Learned Consultant representing the respondent, however, argued that trading has been included as an exempted service specifically vide the notification referred above. The notification cannot be held to be having retrospective effect and consequently he prayed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation order dated 15-3-2012 passed in confirming the demand, culminated in the impugned order dated 16-4-2013. Hence this present appeal is before the Tribunal. 3 . The term exempted services has been defined in Rule 2(e) of the Rules to mean taxable services which are exempted from the whole of the service tax leviable thereon, and include services on which no service tax is leviable under Section 66 of the Finance Act. The definition of exempted service was amended vide Notification No. 3/2011-C.E. (N.T.), dated 1-3- 2011. The effect of the amendment is that an explanation was added to the said Rule, clarifying that exempted service includes trading . On perusal of both unamended and amended provisions of exempted service, it reveals that the activity of trading was not included within the ambit of definition prior to 1-4-2011. In this case, since the dispute is up to the period of 2009-2010, the amended definition of exempted service would not be applicable. Thus, the embargo credit in Rule 6(3) of the Rules does not have any application for taking of Cenvat credit on the activities concerning provision of taxable service and trading activity. Hence, denial of Cenvat credit by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard the learned counsel for appellant-manufacturer who submitted that before 1-4-2011, there was no provision in the law to treat trading as service. 4 . Heard the learned DR, who has supported the grounds of appeal filed by Revenue. 5 . Having considered the rival contentions and on perusal of records, I find that statute did not have the definition of trading as service for the period before 1-4-2011. Therefore, the definition of trading as service was not applicable to the period upto 31-3-2011. The period covered in the said show cause notice is upto 31-3-2011, therefore the demand is not sustainable. As a result, Appeal No. E/54591/2014 is allowed and Appeal No. E/53649/2014 is dismissed. In view of above judgments it is settled that demand under Rule 6(3) in respect of trading activity for the period upto 31.03.2011 is not sustainable. 5.5 The demand of the same count under Rule 6(3) was also raised for the period 2012-13 onwards. During this period, we find that the appellant admittedly paid back an amount equal to Cenvat Credit in respect of input services used for trading activity which is incompliance with the scheme of Rule 6(3) of the Cenvat Credit Rules. As per this Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Modvat credit. 5.7 Hi-Line Pens Pvt. Ltd. V/s Commissioner reported in 2003 (158) ELT 168 (Tri. Del) : In this case before the Appellate Tribunal, the appellant took Modvat credit on common inputs i.e. inputs which were common for exemption and dutiable pens, but did not keep separate accounts or pay 8% on the exempted pens or reverse credit. The appellant reversed the entire credit later on to give a quietus to the dispute, but the view of the Department was that reversal of credit was not done prior to clearance of pens in question and facility of reversal of credit could not be available to the appellant. However, the Appellate Tribunal has held in para 4 of the decision that the time of reversal was not material for reversal of credit taken in excess of what was due. The objection of the Department was overruled by the Appellate Tribunal. 5.8 Bharat Earth Movers Ltd. V/s Collector reported in 2001 (136) ELT 225 (Tri. Bang.) : In this case before the Appellate Tribunal, the appellant assessee had not reversed the credit even when the case was heard by the Appellate Tribunal, but still however, the Appellate Tribunal allowed the appeal of the assessee by directing the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit, which is other than the credit attributed to input services used in exempted goods or services can be recovered from the assessee. The CESTAT has also taken a view on the issue of delay in giving intimation about the option to be exercised by the assessee, and has held that delay in giving intimation was at the most a procedural lapse. 5.13 On the basis of the above, the legal position that emerges is that when an assessee reverses or pays back the amount of credit taken on the inputs/input services used in relation to the manufacture of particular final products or rendering services, such reversal or paying back of credit would result in a situation where the assessee was deemed to have not taken the credit at all. The further legal position that emerges from the above referred case law is that such reversal may be at the time of clearance of the goods from the factory, may be at a time subsequent to such removal of final products from the factory, or such reversal may also be after the Revenue initiated investigation and enquiries against the assessee in the matter. 5.14 In this view of the matter, the only obligation on the appellant had been to reverse/pay back amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal ground. Therefore, the demand of Cenvat credit on Cement and Steel was confirmed. 5.19 We find that the appellant have strongly contested the issue on the ground of limitation. The appellant s submission is that since the Cement and Steel were used for construction of Showrooms and Showrooms were used for providing output service of Authorized Service Station on which Service Tax was paid, they had bonafide belief of eligibility to avail the Cenvat Credit on Cement and Steel. The appellant have strongly contested the demand on the ground of limitation as there is no suppression of fact and mala fide on the part of the appellant. In order to arrive at conclusion whether there is any mala fide intention on the part of the appellant, we analyse the legal position of the issue during the relevant period i.e. upto 31.03.2011, we find that during said period, the Cement and Steel used for construction of the premises of output service provider was clearly admissible in terms of definition of input under Rule 2(k) of Cenvat Credit Rules. The issue has been considered in the following judgments: Commissioner of C.EX., vs. Sai Sahmita Storages (P) Ltd.- 2011 (270) ELT 33 (A.P) Mundra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of branch offices and therefore, demand was not sustainable. 5.22 In the present case also even though that said three premises were not registered but the service provided by the said premises was admittedly on payment of Service Tax. Therefore, the credit availed in respect of input/input services used in the said three premises is clearly admissible. 5.23 The appellant have strongly contested the demand raised in the show caused notice dated 23.10.2012 which was issued for the period 2007-2008 to 2010-2011 on the ground of limitation in respect of all the issues. On perusal of fact available on record we find that as regard the issue of demand on spare parts and lubricants the appellant have raised common invoice for service as well as for sale of spare and lubricants. The service tax was discharged on the service portion. The issue was also convered in favour of the appellant by various judgements as discussed above. As regard the demand on sales incentive received by the appellant from M/s Toyota Kirloskar Motor. We find that the issue was of interpretation of service tax provision and the same was covered by the various judgments as discussed ereinabove. As regard the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X
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