2018 (7) TMI 767 - AT - Central Excise

CENVAT Credit - input services - services provided by the over-seas commission agent including the services of sales promotion by the appellant - Held that - From the agreement produced by the appellant which has been made between M/s. MAZER-the foreign commission agents and the appellant clearly placed the responsibility to undertake activities to promote the sale and other business objective of the company on the said commission agents - It is wide evident that the services provided by M/s MASER are inclusive of services of sales promotion. Since the activities undertaken by over-seas commission agents are inclusive of activities of sales promotion, admissibility of credit cannot be disputed - reliance placed in the case of Monarch Catalyst Pvt. Ltd. v. CCE 2016 (2) TMI 64 - CESTAT MUMBAI , where it was held that the appellant is entitled to avail cenvat credit in respect of commission paid to the commission agent based abroad. Since matter is being allowed on merits, the issue of limitation is not entered in this case - appeal allowed - decided in favor of appellant.

Issues involved: Admissibility of CENVAT credit for services provided by overseas commission agents, applicability of amendments to Cenvat Credit Rules, 2004, retrospective nature of explanation regarding sales promotion services, invocation of larger period of limitation, interpretation of agreement between parties, determination of services inclusive of sales promotion, and decision on the appeal.

Admissibility of CENVAT credit for services provided by overseas commission agents: The appellant argued for the admissibility of CENVAT credit based on precedents and circulars supporting such credit for services provided by overseas commission agents. The appellant cited various decisions and a CBEC Circular clarifying the admissibility of CENVAT credit for such services. Additionally, the appellant highlighted amendments to Rule 2(l) of Cenvat Credit Rules, 2004, emphasizing the retrospective nature of the explanation regarding sales promotion services. The Tribunal considered these arguments and found in favor of the appellant, stating that the services provided by overseas commission agents, including sales promotion activities, make the CENVAT credit admissible.

Applicability of amendments to Cenvat Credit Rules, 2004: The appellant relied on the retrospective nature of the explanation added to Rule 2(l) of Cenvat Credit Rules, 2004, to support the admissibility of CENVAT credit for services provided by overseas commission agents. The Tribunal noted the consistency of decisions across various benches supporting the retrospective application of this explanation, further strengthening the appellant's argument for the admissibility of CENVAT credit.

Invocation of larger period of limitation: The appellant argued against invoking a larger period of limitation due to conflicting views on the issue and cited relevant decisions to support their stance. The appellant referenced judgments indicating that a larger period of limitation should not be imposed in situations where there are contradicting views. The Tribunal considered this argument but ultimately did not delve into the issue of limitation, as the appeal was allowed on its merits.

Interpretation of agreement between parties: The Tribunal reviewed the agreement between the parties, focusing on the responsibilities outlined for the overseas commission agents. The agreement detailed the activities related to sales promotion and other business objectives that the commission agents were responsible for, supporting the argument that the services provided were inclusive of sales promotion activities. This interpretation played a crucial role in determining the admissibility of CENVAT credit for the services provided by the overseas commission agents.

Determination of services inclusive of sales promotion: Based on the analysis of the agreement and the responsibilities outlined for the overseas commission agents, the Tribunal concluded that the services provided by the commission agents were inclusive of sales promotion activities. This determination, coupled with the precedents and circulars cited by the appellant, supported the admissibility of CENVAT credit for the services rendered by the overseas commission agents.

Decision on the appeal: Considering the arguments presented, the Tribunal allowed the appeal, ruling in favor of the appellant regarding the admissibility of CENVAT credit for services provided by overseas commission agents. The Tribunal did not address the issue of limitation, as the appeal was allowed on its merits. The decision was based on the interpretation of the agreement and the determination that the services provided were inclusive of sales promotion activities, aligning with the precedents and circulars supporting the admissibility of CENVAT credit for such services.

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