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TMI Blog2024 (7) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... the department, certain omissions were found including erroneously availed CENVAT credit of the input services used for providing taxable service during the period 2006-2007. Thus, show cause notice was issued demanding service tax with interest and penalties were also proposed under various provisions of law. The appellant denied the allegations, however, Adjudication Authority confirmed the demand of duty with interest and imposed penalties. Aggrieved by the impugned order, present appeal is filed. 3. During the hearing, the Learned counsel for the Appellant submits that; the demand of Rs. 14,71,222/- for the period from October 2005 to March 2007, is squarely covered by the judgement of the Hon'ble Supreme Court in the matter of CCE Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the appellant for warranty and post-warranty support to be given to the customers of APC. The Appellant rendered such services either directly to the customers of APC or they render services to channel partners of APC, who are called in the trade parlance as Authorised Service Providers (ASPs). The Appellant in turn provides training, technical support and part support to ASP back-to-back. The Appellant, while discharging the service tax on their billing raised on ASPs take CENVAT credit of Service Tax charge billed on APC, since the same is in the nature of "input services" in the hands of Appellant. As regards the allegation regarding non production of evidence for having paid Service Tax, the Appellant brought to our attention, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by APC, the provider of service, when service tax has been collected by service provider from the Appellant and remitted to the Government. Without reopening service provider's tax assessment, the cenvat credit availed by the Appellant cannot be questioned on the ground that no service was provided. 6. Further Learned counsel for the Appellant submits that in the context of manufacturer vis-à-vis cenvat credit availed by the manufacturers, the issue is well settled. As per the Judgment of Hon'ble Supreme Court in the matter of CCE Vs. MDS Switchgear Limited, 2008 (229) ELT 485 (SC), while affirming the decision of the Tribunal, it is held that recipient manufacturer is entitled to avail the benefit of duty paid by supplier manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases held that sub-rule (1) of Rule 3, ibid is the enabling provision, which entitles a manufacturer or a provider of output service to take Cenvat credit on various duties and taxes paid on any inputs or capital goods received in the factory of manufacture of final product and on any input service received by the manufacturer of final product or by the provider of output service. The legislative intent behind enactment of the Cenvat statute is to avoid the cascading effect, meaning thereby that the element of excise duty or service tax paid on the goods/services, should be available to the intermediary manufacturer of final products or provider of output services as Cenvat credit, so that the ultimate consumer will not be hard hit by pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at the dealer's end. 9. The Learned Counsel further submits that the audit party had brought out the allegations as per audit note dated 06.06.2008 and show cause notice was issued only on 06.08.2008. Since there is no evidence regarding the suppression or fraud, invoking the extended period of limitation is also unsustainable. 10. The Learned Authorised Representative (AR) of the Revenue submits that M/s APC is not providing any taxable service to M/s Rolex Logistics (P) Ltd. Further, as per Rule 2(l) of Cenvat Credit Rules 2004, "Input Service" means any service used by a provider of taxable service for providing an output service. Thus, there should be "service" which is used by a provider of taxable service. In the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x element computed as 33% of the total invoice value/contract value, since 67% of the value was subject to payment of VAT and the appellant had paid VAT on the said 67% value. Subsequently, the Honourable Supreme Court held that service category of 'Erection, Commissioning or Installation' (ECI for short) as defined in section 65(105) (zzd) did not apply to composite contracts/works prior to 01.06.2007. We find that the issue is squarely covered by the judgement of Hon'ble Supreme Court in the matter of LARSEN & TOUBRO LTD VS. CST, 2020(32) GSTL 538(Cal.) and demand for the said period is unsustainable. 13. Regarding demand of Rs. 1,22,894/- for the period 2007-2008 and 2008-2009, Appellant has only provided labour/service of erect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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