2012 (6) TMI 25 - AT - Service Tax

Service tax credit taken on commission agent service received - demand was made on the ground that the services received from selling agents did not have any nexus with the manufacture and clearance of final product from the place of removal and service was beyond stage of manufacture and clearance of goods and therefore cannot be considered as input service Held that - nexus to manufacturing activity need not be proved as regards input services in view of the inclusive part of the definition. service tax paid on the commission paid to the foreign commission agents for sales promotion is admissible as cenvat credit. If the credit paid to foreign commission agents for sales promotion is admissible, naturally, service tax paid to commission agents for sales promotion within the country also would be admissible. in the case of Coca Cola India (P.) Ltd. (2009 (8) TMI 50 (HC)). appeal is allowed

Summary

Issues:
Challenge to demand for service tax credit on commission agent service, interest, and penalty.

Analysis:
The appellants contested the demand for service tax credit, interest, and penalty related to commission agent services. The Revenue argued that the cenvat credit availed by the appellants on service tax and commission paid to selling agents was not admissible as input service. The Revenue claimed that the services received had no nexus with the manufacturing and clearance of final products. The appellants relied on decisions by the Hon'ble High Court of Mumbai and a Tribunal ruling to support their claim that service tax credit for services related to business activity, such as sales promotion by commission agents, should be allowed.

The learned advocate for the appellants cited precedents to argue in favor of admissibility of service tax credit for commission agent services. The Revenue contended that the commission paid to dealers did not form part of the transaction value and was claimed as discounts, not commissions. The Revenue relied on Tribunal decisions to support their stance that such services lacked nexus with manufacturing activities, hence the credit was inadmissible. The Commissioner (Appeals) also held that the commission paid was treated as a discount and not part of the transaction value.

In the judgment, it was noted that the show cause notice did not mention the commission being treated as a discount. The appellants clarified that the service tax credit demand was based on services received from selling agents for sales promotion. The Tribunal found the Commissioner (Appeals)'s conclusion regarding the nature of commission as discount to be unfounded, as it was not supported by the show cause notice or the appellants' submissions. The Tribunal emphasized that the demand was raised on different grounds, and the nature of commission was not a valid reason for disallowing the credit.

Regarding the applicability of precedents, the Tribunal found that decisions by the Hon'ble High Court of Mumbai supported the admissibility of service tax credit for services related to business activities like sales promotion. The Tribunal also referenced a previous Tribunal ruling that deemed service tax paid to foreign commission agents for sales promotion as admissible cenvat credit. The Tribunal concluded that the decisions cited by the Revenue were not applicable, as they did not consider the High Court rulings. Consequently, the appeal was allowed, granting relief to the appellants based on the established nexus between sales promotion activities and business operations.