2019 (3) TMI 105 - AT - Central Excise

CENVAT Credit - overriding commission paid to M/s. Monara Engineering & Trading Pvt. Ltd. - Demand alongwith interest and penalty - Held that - In the present case, it is not disputed that the appellant has in fact received services of overseas trading partner and the same has been used for export of goods. It is also a fact that appellant has actually paid the service tax as applicable under Reverse Charge Mechanism under Section 66A of the Finance Act, 1994. Further, such availment of CENVAT credit of service tax paid on commission should be allowed under CENVAT Credit Rules. Appeal allowed - decided in favor of appellant.

Issues:
1. Irregular availing of CENVAT credit on service tax paid for commission.
2. Eligibility of CENVAT credit under Export Policy.
3. Denial of CENVAT credit and availability of rebate.
4. Applicability of judicial precedents on CENVAT credit entitlement.
5. Admissibility of CENVAT credit on trading activity.
6. Determination of activity as Export of Service under Service Tax Rules.

Analysis:

1. The appeal challenged the order rejecting the appellant's appeal against the demand for irregularly availed service tax input credit on an overriding commission paid to a trading partner. The appellant, engaged in manufacturing lubricating greases, imported materials bonded in a Customs Warehouse and exported goods to Sri Lanka. The department alleged irregular CENVAT credit availing, leading to a demand notice.

2. The appellant argued that CENVAT credit eligibility should align with the Export Policy and not solely under CENVAT Credit Rules. The appellant paid service tax under Reverse Charge Mechanism and sought credit denial reversal or rebate under Notification No.41/2012-ST. Citing legal precedents, the appellant contended that denial of credit was unjustified.

3. The respondent defended the order, asserting irregular CENVAT credit availing on trading activity not falling under manufacture or taxable service provision. The activity wasn't considered Export of Service due to non-compliance with Service Tax Rules.

4. The Tribunal found the appellant received overseas services for exporting goods, paid applicable service tax, and availed CENVAT credit without seeking refund or exemption. Relying on legal precedents like Monarch Catalyst Pvt. Ltd. and Jotindra Steel & Tubes Ltd., the Tribunal deemed the impugned order unsustainable, allowing the appeal and granting consequential relief.

5. The Tribunal's decision emphasized the alignment of CENVAT credit rules with the Export Policy, rejecting the denial of credit based on trading activity and service tax payment under Reverse Charge Mechanism. The ruling underscored the importance of legal precedents in determining CENVAT credit entitlement and the revenue-neutral nature of the appellant's actions.

6. Ultimately, the Tribunal set aside the impugned order, concluding that the appellant's CENVAT credit availing was permissible under the Export Policy framework, aligning with legal precedents and justifying the reversal of credit denial. The judgment favored the appellant, highlighting the importance of considering legal principles and policy alignment in CENVAT credit determinations.

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