2013 (11) TMI 1074 - AT - Service Tax

Cenvat credit on Commission Agent Service - Revenue was of the view that the commission agent s service (Business Auxiliary Service) for procuring sales orders is not covered by the definition of input service Held that - Following CCE, Ahmedabad vs. Cadila Healthcare Ltd. 2013 (1) TMI 304 - GUJARAT HIGH COURT - The definition of input service allows all credit on services used for clearance of final products upto the place of removal - activity of sale promotion is specifically allowed and on many occasions, the remuneration for the same is linked to actual sale - credit is admissible on the services of sale of dutiable goods - According to the Circular No.943/4/2011-CX dated 29.4.2011, the service of commission agents (Business Auxiliary Service) is covered by the term advertisement or sales promotion - there is nothing in the circular which is contrary to the provisions of law and hence the same would be binding on the Departmental officers - commission agents service would be cenvatable, as the term advertisement and sale promotion was there in the definition of input service even during period prior to 1.4.2011 order set aside Decided in favour of Assessee.

Summary

Issues:
1. Eligibility for Cenvat credit of service tax paid on commission agent's service for procuring orders for sale of sugar.

Analysis:
The case involved a dispute regarding the eligibility of the appellant, who are sugar manufacturers, for Cenvat credit of service tax paid on commission agent's service for procuring sales orders. The department contended that the commission agent's service for procuring sales orders did not fall under the definition of 'input service'. Consequently, the department issued five show cause notices disallowing the Cenvat credit, demanding its recovery with interest, and imposing penalties under Rule 15. The Jurisdictional Assistant Commissioner upheld the disallowance of Cenvat credit, confirmed the demands, and imposed penalties. On appeal to the Commissioner (Appeals), the appeals were dismissed, leading to the filing of five appeals.

The appellant's counsel argued that the issue had been decided in favor of the appellant by the Hon'ble Punjab & Haryana High Court and cited various Tribunal judgments supporting their position. On the other hand, the Jt. CDR defended the impugned order by referring to the judgment of the Hon'ble Gujarat High Court, which held that commission agent's service for procuring sales orders did not qualify as an 'input service'. The Tribunal considered the arguments from both sides and examined the records.

The Tribunal referred to a similar case involving Birla Corporation Ltd., where it was held that the service of commission agents for procuring sales orders was covered by the definition of 'input service' and thus eligible for Cenvat credit. The Tribunal highlighted the interpretations provided by different High Courts regarding the term 'activities relating to business' in the definition of 'input service'. It was noted that the expression covered activities integrally connected with the business of manufacturing final products. The Tribunal also referenced a circular clarifying that the service of commission agents fell under 'advertisement or sales promotion', making it cenvatable.

Based on the above discussion and precedents, the Tribunal concluded that the impugned order was not sustainable and set it aside, allowing the appeals. The judgment emphasized the broad interpretation of 'input service' and the relevance of activities related to the business of manufacturing final products in determining Cenvat credit eligibility for services like those provided by commission agents.