2015 (10) TMI 1801 - AT - Central Excise

Waive of pre deposit - Denial of CENVAT Credit - whether the applicant is eligible to avail CENVAT Credit on the Service Tax paid on sales commission - Held that - Prima facie, the applicant had not pleaded any material on the plea of sales promotion. However, we find force in the contention of the ld.Advocate in respect of the limitation. On query from the bench, the ld.Advocate fairly submits that he is unable to quantify the demand for the normal period of limitation. At this stage, ld.A.R. for the Revenue submits that after taking into the average figure of the demand, it would come about to ₹ 19 lakhs for normal period. After considering the submissions made by both sides, we find that the decision of the Hon ble Gujarat High Court 2013 (1) TMI 304 - GUJARAT HIGH COURT , prima facie, is applicable in the present case. The submission of the ld.Advocate on the sales promotion would be examined on the basis of the material at the time of the hearing of the appeal. - Partial stay granted.

Summary

Issues:
1. Eligibility for CENVAT Credit on Service Tax paid on sales commission.
2. Distinction between sales promotion and payment for procurement of order.
3. Limitation period for quantifying the demand.

Analysis:
1. The dispute in this case revolves around the eligibility of the applicants, engaged in the manufacture of Cotton Yarn, to avail CENVAT Credit on the Service Tax paid on sales commission under the reverse charge mechanism. The appellant's counsel argued that the payment made was for sales promotion, citing a previous decision by the Hon'ble Gujarat High Court. However, the Revenue contended that the payment was for procuring orders, not sales promotion, and emphasized the lack of evidence supporting sales promotion activities. The Tribunal noted the absence of material on sales promotion but acknowledged the limitation argument raised by the appellant's counsel.

2. The distinction between sales promotion and payment for procurement of orders was a crucial point of contention. The appellant's counsel relied on a decision by the Tribunal in a similar case to support their argument that the payment made was for sales promotion. Conversely, the Revenue argued that the payment was for procuring orders and not for sales promotion activities like advertising or campaigns. The Tribunal found merit in the Revenue's argument regarding the nature of the payment and the lack of evidence supporting sales promotion activities.

3. Regarding the limitation period for quantifying the demand, the appellant's counsel admitted an inability to provide a specific figure for the normal period of limitation. The Revenue estimated the demand to be around Rs. 19 lakhs for the normal period. The Tribunal considered the arguments from both sides and found the decision of the Hon'ble Gujarat High Court to be prima facie applicable in the present case. The Tribunal directed the appellant to make a pre-deposit of Rs. 15,00,000.00 within eight weeks, with the balance amount of tax, interest, and penalty to be waived until the appeal's disposal, subject to compliance reporting on a specified date.

This judgment highlights the importance of distinguishing between different types of payments, such as sales promotion and procurement of orders, in the context of availing CENVAT Credit on Service Tax. It also underscores the significance of complying with pre-deposit requirements and addressing limitation issues in tax disputes.