2015 (10) TMI 1574 - AT - Service Tax

Denial of CENVAT Credit - credit of service tax on the Commission paid to the agents for sale of finished goods - Held that - It is evident from the show cause notice that there is no dispute that the appellant sold the goods through Commission Agents and paid the Commission to the Agents. The dispute relates to eligibility to CENVAT credit on the service tax paid on Commission. The findings of the Commissioner (Appeals) that the appellants are selling the goods to their dealers are totally inconsistent witht the allegation in the show cause notice. Hence, such order can not be sustained in the eye of law. - impugned order is set-aside. The matter is remanded to the Commissioner (Appeals) to decide afresh on merits as well as on limitation - Decided in favour of assessee.

Issues:
1. Eligibility of CENVAT credit on service tax paid on Commission.
2. Scope of the show cause notice.
3. Allegation of selling goods through Commission Agents.
4. Findings of the Commissioner (Appeals) and their consistency with the show cause notice.
5. Decision on remand to the Commissioner (Appeals).

Eligibility of CENVAT credit on service tax paid on Commission:
The appellant, engaged in manufacturing, faced a show cause notice proposing recovery of CENVAT credit of service tax on Sales Commission paid to agents for sale of finished goods. The dispute centered on whether Sales Commission fell under the definition of Input Services directly or indirectly related to manufacturing activity. The Adjudicating authority confirmed the duty demand, but the Commissioner (Appeals) upheld the decision. The learned Advocate argued that the Commissioner's order exceeded the show cause notice's scope. The Tribunal agreed, emphasizing that the dispute was about CENVAT credit eligibility on service tax paid on Commission, not the nature of sales to dealers.

Scope of the show cause notice:
The main contention was that the Commissioner (Appeals) went beyond the show cause notice's scope. The Commissioner's order implied that the appellant sold goods to dealers who then paid the appellant, with the dealers further selling to buyers and receiving Commission discounts. The learned Advocate highlighted this inconsistency with the show cause notice's allegations. The Tribunal concurred, stating that the Commissioner's findings were incongruent with the notice, leading to the order's inability to stand legally.

Allegation of selling goods through Commission Agents:
The show cause notice alleged that the appellant sold goods through Commission Agents and paid them Commission. However, the eligibility of CENVAT credit on the service tax paid on Commission was the crux of the dispute. The Tribunal noted the discrepancy between the show cause notice's allegations and the Commissioner's findings, leading to the order's reversal and remand for a fresh decision.

Findings of the Commissioner (Appeals) and their consistency with the show cause notice:
The Commissioner (Appeals) upheld the duty demand, linking it to the nature of sales to dealers and Commission payments. However, the Tribunal found this inconsistent with the show cause notice, emphasizing that the dispute revolved around CENVAT credit eligibility on service tax paid on Commission. This inconsistency led to the order's annulment and remand for a proper decision.

Decision on remand to the Commissioner (Appeals):
In light of the above discussions, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a fresh decision on merits and limitation. The Commissioner (Appeals) was instructed to provide a proper opportunity for hearing before making a decision. The appeal was allowed by way of remand, ensuring a fair reconsideration of the case.

← Previous Next →