2016 (1) TMI 1063 - HC - Service Tax

Cenvat Credit - input services - Service Tax paid on commission amount paid to dealers/stockist - nexus with manufacturing activity - Whether the activities undertaken by the service provider were in nature of sales promotion activity? - Held that - predominantly the entire agreement was one in the nature of appointing a partnership firm as stockist of the appellant company who would upon being supplied the goods in question would store the same and dispose of in the market at agreed rates upon which would receive certain commission. - A fleeting reference to attempt to sales promotion would not change the very basic nature of agreement and the relations between the appellant and the stockist converting the stockist as sales promotion agent. Payment to the agents appointed by the appellant would not be eligible for cenvat credit. - Decided against the assessee.

Summary

Issues:
1. Tribunal's reliance on previous judgment
2. Eligibility of cenvat credit for commission paid to dealers/stockists
3. Validity of agreement between appellant and distributors
4. Nature of activities undertaken by service provider

Analysis:
1. The appeal challenged the Tribunal's decision based on the judgment of the High Court in a previous case. The adjudicating authority held that commission paid to agents appointed by the appellant was not eligible for cenvat credit. The authority cited that the agents were concerned with sales, not sales promotion, making the appellant ineligible for credit.

2. The Commissioner (Appeals) dismissed the appellant's appeal, and the Tribunal upheld the decision, emphasizing the High Court's judgment. The Tribunal ruled that the activities of distributors/stockists were purely distribution/sales, not sales promotion, thus denying cenvat credit for commission paid to them.

3. The appellant argued that the agents were involved in sales promotion based on the agreement executed between the parties. However, the Court noted that the agreement primarily appointed a partnership firm as a stockist for the sales of the appellant's product, with clauses detailing stock transfers, expenses, and commission payments based on sales turnover.

4. The Court referenced a previous case involving commission paid to foreign agents, clarifying that such payments did not qualify as sales promotion activities. The Court analyzed the definition of input service and activities relating to business, concluding that commission agents' services did not fall within the ambit of eligible activities for cenvat credit.

5. The Court found that the agreement between the appellant and the stockist was primarily for stock storage and sales, not sales promotion. Despite a brief mention of sales promotion in the agreement, the fundamental nature of the relationship did not change, leading to the dismissal of the tax appeal.