2011 (11) TMI 313 - AT - Service Tax

Cenvat credit of Service Tax on the services of commission agent Held that - Various judgments have pronounced that Service Tax paid on the commission agent services is available as modvat credit. Further, Circular No. 943/4/2011-CX dated 29.4.2011 clarifies that even after the deletion of expression activities related to business from the definition of input services, the credit of Service Tax paid on the sales promotion activities and on the services of sales of dutiable goods on commission basis would be admissible as credit. Order denying credit is set aside Decided in favor of assessee.

Summary

Issues:
Whether service tax paid on commission agent services is available as Cenvat credit to the appellants.

Analysis:
The judgment by the Appellate Tribunal CESTAT, New Delhi, involved the issue of whether the service tax paid on commission agent services could be considered as Cenvat credit for the appellants. The appellants, engaged in sugar manufacturing, availed the services of a commission agent for selling their final product and paid service tax under Business Auxiliary services category. The Revenue contended that the appellants were not entitled to avail Cenvat credit on these services, leading to proceedings initiated against them. The lower authorities held that commission agent services did not qualify as input services under the Cenvat Credit Rules, 2004, as they were considered post-manufacturing and post-clearance activities. However, the appellants argued that these services were received prior to goods clearance, based on orders procured by them, and thus should be eligible for Cenvat credit.

The judgment highlighted conflicting decisions by different Tribunals on the eligibility of commission agent services as input services. While the Commissioner (Appeals) preferred a decision contrary to the Tribunal's view in a specific case, it was noted that other Tribunal decisions supported the appellants' stance. The judgment referenced various cases, such as CCE, Raipur vs. Bhilai Auxiliary Industries and Cadila Healthcare Ltd. vs. CCE, Ahmedabad, which held that service tax paid on commission agent services was admissible for Cenvat credit. It was emphasized that these decisions established a precedent favoring the appellants' position.

Additionally, a recent Circular issued by the Board clarified that even after certain amendments to the definition of input services, credit for service tax paid on sales promotion activities and commission-based sales of dutiable goods would be admissible. The Tribunal considered this Circular and the timing of the case in question, noting that the precedent decision and the line of judgments supporting the appellants' claim remained valid. Ultimately, the Tribunal found the impugned orders denying Cenvat credit on commission agent services unsustainable on merits and allowed the appeal, providing consequential relief to the appellants. The stay petition and appeal were disposed of accordingly.