2010 (12) TMI 650 - AT - Service Tax

Waiver of pre-deposit - business auxiliary services - Rule 2(l) of Cenvat Credit Rules 2004 (CCR) - assessee had paid commission and service tax on the commission subsequent to manufacture and clearance of the excisable goods - L&T is the sole selling agent of the assessee and is prima facie engaged in promoting sales of the hydraulic excavators manufactured by the assessee - Held that sales promotion is specifically covered in the definition of input service - once the cost incurred by the service was added to the cost and was so assessed, it was a recognition by revenue of the services having a connection with the manufacture of the final product - Held that Komatsu has made a strong prima facie case against the impugned demand and penalty - Decided in favour of the assessee

Summary

Issues:
1. Demand of irregularly availed cenvat credit and penalty under Section 11AC of the Central Excise Act.
2. Eligibility of service tax paid on commission as input service.
3. Admissibility of credit of service tax paid on commission.
4. Whether the demand was barred by limitation.
5. Interpretation of input service under Rule 2(l) of Cenvat Credit Rules 2004.
6. Application for waiver of pre-deposit and stay of recovery of dues.

Analysis:

Issue 1:
The impugned order demanded a significant amount from the appellants for irregularly availed cenvat credit and imposed a penalty under Section 11AC of the Central Excise Act. The period in question was from September 2005 to December 2008.

Issue 2 & 3:
The appellants, engaged in manufacturing hydraulic excavators, entered into a sole selling agreement with another entity, paying commission and service tax on the commission under 'business auxiliary services.' The dispute arose as the department alleged that the service of sales promotion did not constitute an input service, thus disallowing the credit. The appellants argued that the service was covered under the definition of input service in Rule 2(l) of Cenvat Credit Rules 2004, specifically mentioning 'sales promotion.'

Issue 4:
The appellants contended that the demand was barred by limitation, highlighting that they had provided necessary documents as early as September 2005, including the agreement with the other entity and invoices showing payment of commission and service tax.

Issue 5:
The Tribunal analyzed the definition of 'input service' under Rule 2(l) of CCR, emphasizing that 'sales promotion' was explicitly included in the definition. Citing a judgment from the Bombay High Court, it noted that the cost added to the final product price indicated a nexus to manufacturing, supporting the admissibility of the credit.

Issue 6:
After careful consideration, the Tribunal found that the services provided by the other entity were indeed related to promoting sales of the appellants' products. The agreement outlined activities such as market development and sales promotion, aligning with the definition of input service. Consequently, the Tribunal ordered a complete waiver of pre-deposit and stayed the recovery of dues pending the appeal decision.

This detailed analysis of the issues involved in the judgment showcases the complexity of the legal arguments presented and the Tribunal's thorough examination of the relevant legal provisions and precedents.