2019 (1) TMI 971 - AT - Central Excise

CENVAT Credit - input services - commission paid to their agents - Contradicting decisions - Held that - In view of the two contradictory decisions, the legislature took a call for explaining the meaning of sales promotion holding that Taking into circumstances under which the Explanation was inserted in Rule 2(l) of Rules, 2004 and consequence of the Explanation to extend the benefit to the assessee as per Board Circular, we hold that the Explanation inserted in Rule 2(l) of Rules, 2004 by Notification No. 2/2016-CX (N.T.) should be declaratory in nature and effective retrospectively. Commissioner(Appeals) has committed no error while allowing the assesees Appeal - appeal dismissed - decided against Revenue.

Summary

Issues:
- Incorrect availing of cenvat credit for commission paid to agents
- Interpretation of Rule 2(l) of CCR 2004
- Applicability of retrospective effect to amendments
- Conflict between different High Court decisions on input services

Issue 1: Incorrect availing of cenvat credit for commission paid to agents:
The case involved the appellant, engaged in white cement manufacturing, wrongly availing cenvat credit of service tax for commission paid to agents. The Department issued a show-cause notice proposing recovery of the amount, which was confirmed in the Order-in-Original. An appeal was made before the Commissioner(Appeals), who set aside the original order, leading the Department to appeal before the Tribunal.

Issue 2: Interpretation of Rule 2(l) of CCR 2004:
The Department contended that the decision in C.C.E., Ahmedabad Vs. Cadila Health Care Ltd. should be relied upon, as it was a later High Court decision. They argued that the amendment in Rule 2(l) of CCR came into effect after the period in dispute, hence no retrospective effect should be given. The appellant, however, argued that the impugned service qualifies as an input service under Rule 2(l) and cited decisions supporting their stance.

Issue 3: Applicability of retrospective effect to amendments:
The appellant highlighted the confusion caused by conflicting decisions of different High Courts regarding input services. They referred to a notification allowing cenvat credit on sales commission agent services with retrospective effect. The Tribunal clarified that the notification should be considered declaratory and effective retrospectively, resolving the conflicting views of the High Courts.

Issue 4: Conflict between different High Court decisions on input services:
The Tribunal analyzed Rule 2(l) of CCR 2004 and referred to the decision of the Hon’ble High Court of Punjab & Haryana in Ambika Overseas case, which supported the appellant's argument. The Tribunal emphasized that the impugned services were eligible for consideration as input services, as they were utilized for promotion and sales activities, leading to the dismissal of the Department's appeal.

In conclusion, the Tribunal upheld the Commissioner(Appeals) decision, stating that no error was committed in allowing the appellant's appeal based on various Tribunal decisions. The Order was upheld, and the appeal was dismissed.