2015 (8) TMI 956 - AT - Service Tax

Denial of CENVAT Credit - Credit on sales commission - Invocation of extended period of limitation - Held that - Gujarat High Court in the case of Cadila Healthcare Ltd (2013 (1) TMI 304 - GUJARAT HIGH COURT), after considering the decision of Hon ble Punjab & Haryana High Court 2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT , held that CENVAT Credit on overseas commission would not be admissible and hence, the denial of CENVAT Credit on merit is sustainable. Vide Boards Circular No.943/4/2011-CX, dt.29.04.2011, it was clarified that the definition of input service allows all credit on services used for clearance of final product upto the place of removal. Moreover, the activity of sales promotion is specifically allowed and on many occasions, the remuneration for same is linked to actual sale. Reading the provision harmoniously, it is clarified that the credit is admissible on the services of sale of dutiable goods on commission basis. The Hon ble Gujarat High Court in the case of Cadila Healthcare Ltd (supra) differed with the view of Hon ble Punjab & Haryana High Court in the case of Ambika Overseas (supra). It is also noted that the Tribunal in various decisions during the material period held that the CENVAT Credit is available on overseas sales commission. - there is sufficient material to take up the view that the Appellant was holding a bonafide belief of the admissibility of CENVAT credit on overseas sales commission. We have also noticed that the Appellant has taken the credit and duly recorded in the CENVAT account. Thus, there is no material available to invoke the extended period of limitation. Accordingly, the demand of CENVAT Credit alongwith interest and penalty for the extended period cannot be sustained. Denial of CENVAT Credit alongwith interest and penalty is set aside, as barred by limitation - Decided partly in favour of assessee.

Summary

Issues:
1. Denial of CENVAT Credit on sales commission
2. Barred by limitation

Denial of CENVAT Credit on Sales Commission:
The Appellants, engaged in manufacturing excisable goods, availed input service credit on sales commission for services rendered abroad, leading to a Show Cause Notice proposing denial of CENVAT Credit. The Adjudicating authority confirmed the demand of CENVAT Credit, interest, and imposed an equal penalty. The Appellant cited conflicting High Court decisions, with Punjab & Haryana High Court ruling in favor of input service classification, while Gujarat High Court held against. The Appellant argued for following the Punjab & Haryana High Court decision due to their jurisdiction. They contended that the demand was time-barred and maintained a bona fide belief in availing the credit, citing Tribunal decisions and statutory compliance. The Revenue representative supported the Adjudicating authority's findings and emphasized the Gujarat High Court decision's relevance. After considering both sides, the Tribunal agreed with the Revenue representative, upholding the denial of CENVAT Credit on overseas commission based on the Gujarat High Court decision.

Barred by Limitation:
Regarding the limitation issue, the Tribunal analyzed the Boards Circular clarifying input service definitions and the admissibility of credit on sales promotion services. They noted conflicting High Court decisions and Tribunal rulings during the material period, indicating the availability of CENVAT Credit on overseas sales commission. The Tribunal found no suppression of facts by the Appellant and observed their bonafide belief in availing the credit, as evidenced by maintaining statutory records and recording credit in the CENVAT account. Citing the proviso to Section 11A(1) of the Central Excise Act, the Tribunal concluded that the extended limitation period did not apply due to the Appellant's genuine belief supported by legal precedents and circulars. They referenced a similar Gujarat High Court case and a Tribunal decision to support their stance. Consequently, the demand for CENVAT Credit, interest, and penalty for the extended period was deemed unsustainable and set aside as barred by limitation. The Appellant's appeal was allowed, and their miscellaneous application for extending the stay order was dismissed.