2018 (2) TMI 464 - AT - Central Excise

CENVAT credit - 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 matter, with the liberty to approach the Tribunal after disposal of the cases pending before the higher forum. The present appeals are also disposed of with the liberty to both sides to approach the Tribunal - appeal disposed off.

Summary

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

Detailed Analysis:

1. Eligibility of CENVAT Credit on Sales Commission: The principal issue in the appeal pertained to the eligibility of CENVAT credit on the service tax paid on sales commission. The parties agreed that the matter had been previously addressed by the Hon'ble Gujarat High Court in the case of C.C.E. Vs. Cadila Healthcare Ltd. The High Court had ruled that sales commission paid to agents did not fall within the scope of sales promotion as defined under the 'input service' category. Subsequently, in the case of Astik Dyestuff Pvt. Ltd. Vs. C.C.E. & Cus., the High Court reaffirmed its earlier decision and emphasized that the judgment of the jurisdictional High Court should prevail over circulars and judgments from other High Courts. Despite a request to refer the issue to a Larger Bench, the High Court rejected the plea.

2. Legislative Amendment and Interpretation: A significant development occurred with the insertion of an explanation to the definition of 'input service' through Notification No.2/2016 CE(NT) dated 03.02.2016. A Division Bench of the Tribunal in Essar Steel India Ltd. Vs. C.C.E. & S.T., Surat I interpreted this amendment as clarificatory and retroactively applicable. Consequently, even for periods preceding 03.02.2016, service tax paid on sales commission was deemed admissible for CENVAT credit. This interpretation was challenged by the Revenue, leading to a Civil Appeal before the High Court of Gujarat, which was pending at the time of the present appeal.

3. Judicial Disposition and Future Course: Considering the conflicting views between the Division Bench judgment and the High Court precedents, the Tribunal opted to await the High Court's verdict before making a final determination. This decision aligned with the principle established in the case of Ashapura Volclay Ltd and others Vs. C.C., Jamnagar, where matters were deferred pending resolution at higher forums. As a result, the present appeals were disposed of with both parties granted the liberty to approach the Tribunal post the High Court's decision on the pending Appeal against the Division Bench judgment. It was clarified that no recovery or refund would be processed during this interim period, thereby maintaining the status quo until the High Court's pronouncement. The appeal was thus concluded with this course of action.