2018 (10) TMI 754 - AT - Central Excise

CENVAT Credit - input services - service tax paid to the service agent on sale commissions - period from April 2015 to November 2015 - Held that - From the definition of input services, it becomes clear that the activity of sales promotion is specifically included in the definition of input services - similar view adopted in the case of CCE Ludhiana Vs. Ambika Overseas 2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT . As per Circular No. 943/4/2011-CX dated 29.04.2011, also the cenvat credit of service tax paid on amount of commission paid to the commission agent is available to the assessee - Though the Commissioner (Appeals) vide order under challenge, has extended a retrospective benefit of notification no. 2/2016 dated 03.02.2016 but we are of the opinion that the said notification is nothing but the clarification of the said circular. Appeal dismissed - decided against Revenue.

Issues:
1. Eligibility of cenvat credit for service tax paid on sale commissions.
2. Applicability of Notification 2/2016-CE dated 03.02.2016 retrospectively.
3. Definition of input service under CCR, 2004.
4. Interpretation of circular dated 29.04.2011 regarding cenvat credit.
5. Retrospective effect of notification clarifications.

Eligibility of Cenvat Credit for Service Tax on Sale Commissions:
The case involved an appeal by the Department against the Commissioner (Appeals) order allowing the assessee, M/s. J.K Lakshmi Cement Ltd., to avail cenvat credit of service tax paid to service agents on sale commissions. The Department contended that sale commission cannot be considered an input service. The Tribunal analyzed the definition of input service under CCR, 2004, which includes services used in sales promotion. The Tribunal cited the decision in the case of CCE Ludhiana Vs. Ambika Overseas to support the inclusion of sales promotion as an input service. Ultimately, the Tribunal upheld the Commissioner (Appeals) decision, allowing the cenvat credit for service tax on sale commissions.

Applicability of Notification 2/2016-CE Retrospectively:
The Department argued that the Notification 2/2016-CE dated 03.02.2016, which was relied upon by the Commissioner (Appeals), should not have retrospective effect as it came into force after the period in question (April 2015 to November 2015). However, the Tribunal found that the notification was merely explanatory in nature and clarified that the retrospective application was justified. The Tribunal referenced the decision in Essar Steel India Ltd. case and the principle established in Brijmohan Das Lakshman Das case to support the retrospective effect of explanatory amendments.

Interpretation of Circular Dated 29.04.2011:
The assessee argued that Circular No. 943/4/2011-CX dated 29.04.2011 allowed them to avail cenvat credit on sales commissions. The Tribunal agreed with this interpretation and noted that the notification amendments were clarificatory in nature, aligning with the circular's provisions. The Tribunal emphasized that the circular supported the assessee's eligibility for cenvat credit on service tax paid to commission agents.

Conclusion:
After considering the arguments and examining the relevant legal provisions and precedents, the Tribunal upheld the Commissioner (Appeals) decision, allowing the cenvat credit for service tax on sale commissions. The Tribunal found that the explanatory notifications had retrospective effect, in line with established legal principles. Therefore, the appeal by the Department was dismissed, affirming the eligibility of the assessee for cenvat credit on service tax paid to commission agents.

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