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2024 (5) TMI 560

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..... HAT:- Reference made to the decision of in the case of M/S. SRF LTD. VERSUS COMMISSIONER, CENTRAL EXCISE SERVICE TAX, LTU, NEW DELHI [ 2021 (8) TMI 696 - CESTAT NEW DELHI] , wherein the Tribunal after following the decision of ROSMERTA TECHNOLOGIES LTD. VERSUS COMMISSIONER OF CE ST, LTU DELHI [ 2019 (11) TMI 1573 - CESTAT CHANDIGARH] has held that if an order attained finality, the Department cannot take contrary stands in the other pending appeal with regards to the same assessee. Since, the issue is no more res integra and stands settled in favour of the appellant in their own case for the previous period as well as for the subsequent period, and the Department has accepted the same, the impugned order is not sustainable in law and therefore, is set aside by allowing the appeal of the appellant with consequential relief, if any, as per law. Appeal allowed.
SH. S. S. GARG, MEMBER (JUDICIAL) AND SH. P. ANJANI KUMAR, MEMBER (TECHNICAL) Present for the Appellant: Ms. Krati Singh and Sh. Aman Singh, Advocates Present for the Respondent: Sh. Pawan Kumar and Sh. Yashpal Singh, Authorized Representatives ORDER The present appeal is directed against the impugned order dated 10.09.2 .....

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..... for the same issue was already pending. Aggrieved by the said impugned order, the appellant has preferred the present appeal. 3. Heard both the parties and perused the records. 4.1 The learned Counsel for the appellant submits that the impugned order is not sustainable in law and is liable to be set aside as the same has been passed without properly appreciating the facts and the law and binding judicial precedents on the identical issue in the appellant's own case for the previous period and the subsequent period. 4.2 She further submits that the entire issue has been settled in appellant's own case for the previous and subsequent periods on identical issues raised by the Department. 4.3 She further submits that for the previous period i.e. 2006-07 and 2007-08, this issue has attained finality in favour of the appellant vide the decision of the Tribunal in the case of Suzuki Motorcycle (I) Pvt Ltd vs. Commissioner of C. Ex., Delhi-lll - 2015 (38) S.T.R. 209 (Tri. - Del.) whereby, the Tribunal has allowed the appeal filled by the appellant and held that merely because the appellant stands reimbursed part cost of the advertising expenses from their parent company, does not .....

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..... in order to classify the present transaction under the purview of Section 65(104c) of the Act, it is necessary to classify the category of Business Support Service (BSS) as it includes wide array of support services. Further, BSS was introduced to tax an activity which was outsourced by an entity to third party; however, no such outsourcing is present in the present case and therefore, the demand is liable to be set aside on this ground alone. In this regard, she relies on the following case-laws: a) Electronics Technology Parks vs. Commissioner of Cus., C. Ex. & S.T., Trivandrum - 2022 (56) G.S.T.L. 182 (Tri. - Bang.) b) NCR Corporation India Pvt Ltd vs. Commr. of C.T., Bangalore North - 2021 (55) G.S.T.L. 6 (Tri. - Bang.) c) Air Liquide North India Pvt Ltd vs. Commissioner - 2017 (4) G.S.T.L. 230 (Tri- Del.) [affirmed by the Rajasthan High Court at 2019 (27) G.S.T.L. 194 (Raj.)] d) Mundra Port and Special Economic Zone Ltd vs. Commissioner - 2012 (27) S.T.R. 171 (Tri. Ahmd). 4.8 She further submits that the rebate given by Suzuki Japan to appellant is intrinsic part of the transaction of sale/purchase of bikes between Suzuki Japan and the appellant. Hence, the rebate giv .....

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..... s, 2004. The only reason for denial of credit of service tax paid on advertisement expenses is because portion of such expenses stands reimbursed by Suzuki Japan in terms of Article III of the Agreement between Suzuki Japan and the appellant, which is already on record. 4.12 Further, she submits that the conditions of availing the Cenvat Credit under Rule 3 and Rule 4 of the Cenvat Credit Rules, 2004 are also not disputed by the Department i.e. payment of service tax on such input services, valid duty paying documents etc. Further, it is a settled law that when if the duty paid character of inputs and their receipt in manufacturer's factory and utilization for manufacturing a final product is not disputed, then credit cannot be denied. Moreover, denial of Cenvat Credit on the basis that the portion of the cost of input services are reimbursed by the parent company, does not have any statutory backing. 4.13 She further submits that the subject input services received by the appellant were part of its business activity for its use in promoting sale of excisable goods in India. Merely because such expenses are reimbursed by its parent company as per commercial terms does not dis .....

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..... ssue for the previous period i.e. 2006-07 and 2007-08, has already been decided in favour of the appellant in their own case as cited supra and the same has attained finality. It is pertinent to reproduce the findings of the Tribunal in the appellant's own case for the previous period, which is contained in para 5 and is reproduced herein below: "5. However, we find that Commissioner has not given any finding that advertising cost was not incurred by the appellants. Merely because the appellants stand reimbursed part cost of the advertising expenses from their parent company, does not mean that the appellants would become disentitled to the Service Tax actually paid by them. As rightly pleaded before us, the financial arrangement between the subsidiary company and the parent company has no connection or relevance for the purpose of availability of credit of Service Tax paid by the assessee. By adopting the same reasoning of the Commissioner, we would like to observe that if the assessee would have sought deductions of the advertising cost received by them from their parent unit for arriving at the assessable value of their final product, the Revenue would not have admittedly gran .....

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