2013 (12) TMI 1173 - AT - Service Tax

CENVAT Credit - Tax paid on commission agent services - Whether the Service Tax paid on commission agent services is available as Cenvat credit to the appellants by treating the same as input services in terms of Rule 2(1) of Cenvat Credit Rules, 2004 - Held that - Foreign Commission agent service for sale promotion, are input services and credit on Service Tax paid on the same is admissible. As such, we note that there are catenas of judgment laying down that the Service Tax paid on the commission agent services is available as Modvat credit - recent Circular No. 943/4/2011-CX, dated 29-4-2011 issued by the Board clarifying 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 - even after the activities related to business stand deleted from the definition of inputs credit, as per the Board s Circular, the Service Tax paid on commission agent services would be available. However, he clarifies that period involved in the present case is prior to the amendment to the definition of input services - Stay granted.

Summary

Issues:
Dispensing with the condition of pre-deposit of Service Tax and penalties confirmed against the appellant.

Analysis:
The appellant, engaged in sugar manufacturing, availed the services of a commission agent and paid Service Tax under Business Auxiliary services category, claiming Cenvat credit for the tax paid. The Revenue contended that commission agent services were not eligible for Cenvat credit, leading to the initiation of proceedings against the appellant. The central issue was whether Service Tax paid on commission agent services could be considered as input services for Cenvat credit under Rule 2(1) of Cenvat Credit Rules, 2004. The lower authorities argued that these services were post-manufacturing and post-clearance activities, not fulfilling the definition of input services. However, the appellant asserted that commission agent services were received before goods clearance, directly impacting their business activities, citing Tribunal decisions supporting the treatment of such services as input services.

The Commissioner (Appeals) acknowledged conflicting Tribunal decisions on the matter, favoring a decision contrary to the appellant's position. Notably, a Division Bench judgment in a specific case held commission agent services as eligible input services for Modvat. Moreover, other Tribunal decisions supported the admissibility of Cenvat credit on Service Tax paid for commission agent services. The appellant successfully argued a prima facie case for dispensing with the pre-deposit condition based on this legal precedent and the direct nexus of commission agent services with their business activities.

Additionally, a relevant circular issued by the Board clarified that despite changes in the definition of input services, credit for Service Tax paid on sales promotion activities and commission-based sales of dutiable goods remained admissible. Although the circular postdated the period in question, the appellant's case was supported by Tribunal decisions predating the amendment. Consequently, the Tribunal allowed the stay petition and scheduled the appeal for final decision, considering the legal arguments and precedents presented by the appellant's counsel.

This detailed analysis of the judgment highlights the key legal arguments, conflicting Tribunal decisions, the relevance of past precedents, and the impact of relevant circulars on the case at hand.