2013 (10) TMI 493 - AT - Central Excise

Cenvat Credit of service tax paid on commission charged by commission agents, bank guarantee commission Held that - Banks are recovering the service tax which are paid in respect of bank guarantee charges and the bank guarantees are in respect of the manufacture, erection and commissioning of the turbines manufactured by the applicant - Prima facie the same is in respect of the business activity therefore applicant had a strong case in their favour. Credit of Service Tax paid by Commission Agents Held that - CCE, Ahmedabad Vs. Cadila Healthcare Ltd. 2013 (1) TMI 304 - GUJARAT HIGH COURT the credit of service tax which is paid by commission agents denied - commission agents directly concerned with the sales rather than sales promotion and such service provided by such commission agent would not fall within the purview of main or inclusive part of definition of input service as provided under Rule 2(l) of the CENVAT Credit Rules. Waiver of Pre-deposit Time Barred Demand - The major portion of the demand is time-barred and demand of Rs. 12,68,136/- is within the normal period of limitation - Prima facie appellant has a strong case on the ground of time-bar - The applicants are directed to deposit the duty amount which is within the normal period of limitation - On deposit of the amount, pre-deposit of the remaining dues are waived Partial stay granted.

Summary

Issues:
1. Waiver of pre-deposit of duty along with interest and penalty.
2. Denial of credit of service tax paid by commission agents.
3. Denial of credit of service tax paid on bank guarantee charges.
4. Applicability of the decision of the Hon'ble Gujarat High Court in the case of CCE, Ahmedabad Vs. Cadila Healthcare Ltd.
5. Time-barred portion of the demand.

Analysis:
1. The applicant sought waiver of pre-deposit of duty amounting to Rs. 1,03,24,489/- along with interest and penalty. The demand of Rs. 87,64,847/- was confirmed due to the denial of credit of service tax paid by commission agents. Another demand of Rs. 15,59,642/- was confirmed concerning the credit of service tax paid on bank guarantee charges.

2. Regarding the demand of Rs. 87,64,847/-, the contention was that commission agents procured orders for the applicant's goods and charged commission for sales promotion. However, the credit of service tax paid by commission agents was denied. The Revenue relied on the decision of the Hon'ble Gujarat High Court in CCE Vs. Cadila Healthcare Ltd., stating that commission agents are not eligible for such credit.

3. Concerning the credit of Rs. 15,59,642/- for bank guarantee charges, it was argued that since banks recover service tax on these charges related to business activities like manufacture and commissioning of turbines, the credit should be allowed. The Tribunal found merit in this argument, indicating a strong case in favor of the applicant.

4. The Revenue relied on the Gujarat High Court's decision to support their stance on denying credit to commission agents. The Court held that commission agents, being directly involved in sales, do not fall under the definition of input service for credit eligibility. The Tribunal noted that in the present case, the commission agents were indeed involved in the sale of turbines.

5. The applicant contended that a significant portion of the demand was time-barred, with only Rs. 12,68,136/- falling within the normal limitation period. Drawing parallels to the Cadila Healthcare Ltd. case, where the Tribunal initially ruled in favor of the assessee on time-bar grounds, the Tribunal directed the applicant to deposit the amount within 8 weeks. Upon compliance, the pre-deposit of the remaining dues was waived, allowing for recovery during the appeal process.