2019 (6) TMI 1617 - AT - Central Excise

CENVAT Credit - input services - commission paid to its agents situated in and outside India and appointed for the sale and marketing of their goods - reverse charge mechanism - HELD THAT - The issue stands already settled and decided in favour of the Respondent assessee. It is also seen that the First Appellate Authority has extended the benefit on the basis of the decision of the Tribunal in the case of M/S ESSAR STEEL INDIA LTD. VERSUS COMMISSIONER OF C. EX. SERVICE TAX, SURAT-I 2016 (4) TMI 232 - CESTAT AHMEDABAD - Further, Tribunal in the case of M/S. STANLEY SEATING VERSUS THE COMMISSIONER OF CENTRAL EXCISE, BANGALORE 2017 (1) TMI 972 - CESTAT BANGALORE where it was held that the commission paid on sales becomes part of sales promotion resulting in increased manufacturing activity. Credit allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Availment of CENVAT credit on service tax charged by agents on commission
- Interpretation of input services under Cenvat Credit Rules, 2004
- Dispute regarding sales promotion activities and pre-removal expenses

Analysis:
1. Availment of CENVAT Credit: The appeal concerned the Revenue challenging the dropping of a demand for CENVAT Credit amounting to ?18,02,465 on service tax charged by agents on commission during September 2010 to May 2015. The dispute arose as the department contended that such CENVAT credit did not qualify as an input service under the Cenvat Credit Rules, 2004. The Adjudicating Authority initially upheld the demand, which was later overturned by the Commissioner (Appeals), leading to the current appeal.

2. Interpretation of Input Services: The Respondent argued that the commission paid to agents for sales promotion activities falls under the category of input services as defined in Rule 2(l) of the Cenvat Credit Rules, 2004. The Respondent emphasized that without the services of these agents, they would not be able to market their goods effectively. The Respondent provided agreements with the agents as documentary evidence to support their claim, contending that the agents were engaged in procuring sale orders, which is a form of sales promotion. The Respondent cited various case laws supporting their position, highlighting the importance of sales promotion activities in the context of input services.

3. Sales Promotion Activities and Pre-Removal Expenses: The Tribunal analyzed the case laws cited by the Respondent and found that the issue of availing CENVAT credit on commission paid to agents for sales promotion had been settled in favor of the assessee in previous judgments. The Tribunal referenced specific cases where the nexus between sales commission and sales promotion activities was established, emphasizing that sales commission directly contributes to boosting sales and, consequently, manufacturing activities. The Tribunal also noted that the Explanation inserted in Rule 2(l) of the Cenvat Credit Rules, 2004, by Notification No. 2/2016, is declaratory in nature and applicable retrospectively, further supporting the Respondent's position.

4. Conclusion: After considering the arguments and precedents, the Tribunal found that the issue in the present case was in line with previous decisions and the interpretation of input services under the Cenvat Credit Rules. The Tribunal upheld the decision of the Commissioner (Appeals), stating that the commission paid to agents for sales promotion activities qualifies as an input service. Consequently, the appeal filed by the appellant Department was rejected, and the impugned order was sustained based on the established legal principles and precedents cited during the proceedings.