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TMI Blog2023 (5) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has correctly availed cenvat credit on the amount of service tax paid for the services provided by the dealers to the customers on behalf of the appellant for fulfilling the warranty obligations of the appellant. Extended period of limitation - Suppression of facts - HELD THAT:- There does not exists any reason for invoking the extended period of limitation as the issue involved in the present case has already been decided in favour of the appellant. Moreover, the department did not bring any material on record to show that the appellant has suppressed the material facts with intend to evade payment of service tax. Besides this, the audit of the record of the appellant was conducted in February/March 2007 whereas the show cause notice was issued in 2009 after the expiry of two and half years which makes the substantial demand beyond the period of limitation. The impugned orders are set aside - Appeal allowed. - Excise Appeal No. 137 Of 2010 With Excise Appeal No. 160 Of 2010 - A/60111-60112/2023 - Dated:- 28-4-2023 - Mr. S. S. GARG, MEMBER (JUDICIAL) AND Mr. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Vikrant Kackaria a/w Shri Naveen Bindal, Advocates for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not covered under the definition of input services as provided under Rule 2(l) of Cenvat Credit Rules, 2004. After following due process, the demand of cenvat credit alongwith interest and equivalent penalty, was confirmed vide impugned order on the following grounds:- (i) In view of the definition of input services under Rule 2(l) of Cenvat Credit Rules, 2004 and definition of place of removal under Section 4(c) of Central Excise Act, 1944, the after sale services are not covered under the definition of input services as the said services were provided by the dealers to the customers beyond the place of removal of goods and at the time of provision of the said services, the ownership/title of the goods were not with the appellant. (ii) As the said services are claimed to be free service by the appellants, the same cannot form part of the assessable value. Even otherwise, inclusion in assessable value is not criteria for claiming credit as per the above definitions. (iii) Board Circular No. 87/05/2006-ST dated 06.11.2006 clarified that dealer were liable to discharge service tax liability in respect of payment received by them from the company for providing fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uipments Ltd. vs. CCE Coimbatore 2017 (51) STR 457 (Tri.-Chennai) (vii) Gujarat Forging Ltd. vs. CCE Rajkot 2014 (36) STR 677 (Tri.-Ahmd.) (viii) Lucas TVS Ltd. vs. Comm. Of GST C. Ex., Chennai 2020 (37) GSTL 180 (Tri.-Chennai) (ix) Johnson Controls Hitachi Air Conditioning India Ltd. vs. CCE ST- Ahmedabad-III2022-VIL-482-CESTAT-AHM- ST (x) M/s New Holland Construction Equipment Pvt. Ltd. vs. Commissioner of Central Excise, Ujjain 2021-VIL-282- CESTAT-DEL-ST (xi) Coca Cola India Pvt. Ltd. vs. Commissioner of Central Excise, Pune-III 2009 (15) STR 657 (Bom.) (xii) Reliance Industries Ltd. vs. CCE ST- LTU, Mumbai 2022 (380) ELT 457 (Tri.-LB) (xiii) Commissioner of Central Excise, Ludhiana vs. Ambika Overseas 2012 (25) STR 348 (P H) 5. Ld. Counsel further submitted that the Ld. Commissioner in the appellant s own case for the subsequent period has allowed the cenvat credit of service tax on free warranty services vide Order-in-Appeal No. 38/CE/CGST/Appeal-Gurugram/SG/2019 dated 31.05.2019 which is for the subsequent period whereas the present appeals pertains to earlier period, except the period there is no change in the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant is neither a service provider nor service receiver and the service, in question, has been rendered by the dealers not only beyond the place of removal but also after transfer of title of goods in the name of the customers. After removal and transfer of ownership, the appellant has ceased to be the owner of goods. Further, Rule 2(l) of Cenvat Credit Rules, 2004 service provided beyond the place of removal and after transfer of title of goods in the name of customers cannot be treated as input service for the appellant. 8. Further, the place of removal under Section 4(c) of Central Excise Act, 1944 is:- A factory or any other place or premises of production or manufacture of excisable goods; A warehouse or any other place or premises wherein the respective goods have been permitted to be stored without payment of duty; A depot or premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearances from the factory; from where such goods are removed; 9. Ld. DR relied upon the decision of the Hon ble Apex Court in the case of Commissioner of Customs Central Excise, Nagpur vs. Ispat Industries Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. There is nothing on record to show that these decisions have been stayed by the jurisdictional High Court. In support of this submission, Ld. Counsel relied upon the decision of the Hon ble Apex court in the case of Union of India vs. Kamalakshi Finance Corporation reported in 1991 955) ELT 433 (SC.) wherein the Hon ble Apex Court has held that the order of the higher appellate forum would be binding on the lower authority in the absence of any stay of the same. 14. Ld. Counsel further submitted that the appellant has relied upon two latest decisions of the Tribunal in the case of Johnson Controls Hitachi Air Conditioning India Ltd. and M/s Case New Holland Construction Equipment (I) Pvt. Ltd. cited (supra) wherein all the earlier decisions on this issue have been discussed and thereafter the demands have been dropped. 15. Ld. Counsel distinguished the decision of the Hon ble Apex Court relied upon by the Revenue in the case of Maruti Suzuki Limited cited (supra) and submitted that the said decision relates to the definition of inputs and did not relate to the definition of input services . In case, the said decision has been differed by the Hon ble Apex Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent 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. 20. 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 of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the said decision, if that is correct, then the department has accepted the said decision and in the present appeals they are precluded from taking a contrary stand. 24. Further, we also find that the department has filed appeals before the Hon ble High Court where the Tribunal has given the relief to the assessee but the decisions of the Tribunal in those cases have not been stayed and hence, the ratio of the said decisions are binding on the lower authorities. 25. Further, we also find that the department has not been able to distinguish the latest two decisions of the Tribunal in the case of Johnson Controls Hitachi Air Conditioning India Ltd. and M/s Case New Holland Construction Equipment (I) Pvt. Ltd. cited (supra) involving identical issues wherein all earlier decisions of the Tribunal were considered and thereafter, the demands were dropped. 26. Further, we are of the opinion that the decisions relied upon by the Revenue are not directly on the issue and does not reflect the controversy involved in the present case. 27. In view of our discussion above, we hold that the appellant has correctly availed cenvat credit on the amount of service tax paid for the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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