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TMI Blog2024 (3) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... TECHNICAL ) For the Appellant : Sh. Vikrant Kackria , Advocate For the Respondent : Sh. Narinder Singh ( Supdt. ) , AR Sh. Shivam Syal ( Supdt. ) , AR ORDER PER : S. S. GARG These five appeals are directed against different impugned Orders passed by the Commissioner of Central Excise. Since the issue involved in all these appeals is identical, therefore, all the appeals are taken up together for discussion and disposal. The details of period, duty and penalty involved in all the five appeals are given herein below in a table form : Sl. No. Appeal No. Period Duty Penalty 1 E/52363/2015 February 2011 to December 2011 Rs.1,18,30,653/- Rs.1,18,30,653/- 2 E/52362/2015 January 2012 to September 2012 Rs.20,99,394/- Rs.20,99,394/- 3 E/52364/2015 October 2012 to March 2013 Rs.3,08,86,674/- Rs.3,08,86,674/- 4 E/52365/2015 April 2013 to February 2014 Rs.5,25,74,628/- Rs.5,25,74,628/- 3 E/60494/2019 March 2016 to March 2017 Rs.6,42,34,134/- Rs.64,23,413/- 2. Briefly stated facts of the present case are that the appellant is engaged in the manufacture of Excavator Loaders Earthmoving Machines of chapter 85 of Central Excise Tariff Act, 1985 and was registered with the central excise department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s 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 free after sale services to the customers. The Circular did not mention anything about the eligibility of credit to the company in respect of the said services. (iv) The adjudicating authority mainly relied upon the case laws of Ambuja Cement Ltd 2009 (14) STR 3 (P H) to support his findings and confirm the above demands of Cenvat Credit. Aggrieved by the said impugned orders, the appellant filed the present appeals. 3. Heard both the parties and perused the material on record. 4.1 The learned Counsel for the appellant submits that the impugned orders are not sustainable in law and are liable to be set aside as the same have been passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ennai 2020 (37) GSTL 180 (Tri.-Chennai) (k) Johnson Controls Hitachi Air Conditioning India Ltd. vs CCE ST- Ahmedabad-III - 2022-VIL-482-CESTAT-AHM-ST (l) M/s New Holland Construction Equipment Pvt. Ltd. vs Commissioner of Central Excise, Ujjain - 2021-VIL-282-CESTAT-DEL-ST (m) Coca Cola India Pvt. Ltd. vs Commissioner of Central Excise, Pune-III - 2009 (15) STR 657 (Bom.) (n) Reliance Industries Ltd. vs CCE ST- LTU, Mumbai 2022 (380) ELT 457 (Tri.-LB) (o) Commissioner of Central Excise, Ludhiana vs Ambika Overseas - 2012 (25) STR 348 (P H) 4.5 The learned Counsel also submits that the Commissioner (Appeals) 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 case. 4.6 He further submits that in the appellant s own case, cited supra, this Tribunal vide its Orders dated 28.04.2023 and 20.07.2023, has allowed the appeals of the appellant on the identical issue by passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The contention, therefore, is that since the repair and maintenance services are fundamentally linked to sale and sale directly affects the manufacturing activities, the services were used indirectly in relation to the manufacture of final products and would fall under the means part of the definition of input service . Thus, it has been contended that the appellant was justified in availing CENVAT credit of the service tax paid by the appellant on maintenance and repair services . 19. 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. 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovide to the customers. The repair and maintenance services are, therefore, linked to the sale. The services are, therefore, used indirectly in relation to the manufacture of final products. 23. Further, we find that the Ld. Commissioner (Appeals) has dropped the demand of the appellant on the very same issue for the subsequent period vide its order dated 31.05.2019 and the department has not brought anything on record to show that they have been challenged 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) involvi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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