2017 (7) TMI 1211 - AT - Central Excise

CENVAT credit - service tax paid on sales commission - Held that - In similar circumstances, a Division Bench of this Tribunal in the case of Ashapura Volclay Ltd and others vs. C.C., Jamnagar 2017 (6) TMI 659 - CESTAT AHMEDABAD following the principle laid down by the Larger Bench, disposed of the matters, with the liberty to approach the Tribunal after disposal of the cases pending before the higher forum. Following the said judgment, the present appeals are also disposed of with the liberty to both sides to approach the Tribunal soon after the verdict of the Hon ble High Court in the pending Appeal against the Division Bench judgment of this Tribunal in Essar Steel India Ltd. s case 2016 (4) TMI 232 - CESTAT AHMEDABAD filed by the Revenue. Appeal disposed off.

Summary

Issues:
Eligibility of CENVAT credit on service tax paid on sales commission.

Analysis:

The judgment by the Hon'ble Dr. D.M. Misra of the Appellate Tribunal CESTAT Ahmedabad addressed multiple appeals involving a common issue of the eligibility of CENVAT credit on service tax paid on sales commission. Both the advocates/consultants for the Appellants and the ld. A.R. for the Revenue were present during the hearing. The principal issue revolved around whether sales commission could be considered as falling under the scope of sales promotion as mentioned in the definition of input service under Rule 2(l) of the Cenvat Credit Rules, 2004. The Hon'ble Gujarat High Court's decisions in previous cases, such as C.C.E. vs. Cadila Healthcare Ltd. and Astik Dyestuff Pvt. Ltd. vs. C.C.E. & Cus., were cited, where it was held that sales commission paid to agents did not qualify as an input service for availing CENVAT credit.

The judgment further highlighted that a subsequent notification was issued, amending the definition of input service, which was interpreted by a Division Bench of the Tribunal as clarificatory and hence applicable retrospectively. This interpretation allowed for the admissibility of service tax paid on sales commission for CENVAT credit even for the period before the notification was issued. However, the Revenue challenged this interpretation by filing a Civil Appeal before the Hon'ble High Court of Gujarat, which was pending for several months.

Considering the number of appeals on the same issue and the binding nature of the High Court's judgment in Astik Dyestuff Pvt. Ltd.'s case, the Tribunal deemed it inappropriate to make a decision conflicting with the pending High Court appeal. Following a similar precedent set by a Division Bench in another case, the present appeals were disposed of with the liberty for both parties to approach the Tribunal after the High Court's verdict on the pending appeal against the Division Bench judgment. It was clarified that no recovery or refund would be processed during this period, and the appeals along with any cross-objections were considered disposed of accordingly.