2017 (1) TMI 971 - AT - Central Excise

CENVAT credit - input services - sales commission - denial on the ground that the sales commission is a post-sale activity and hence not covered under the definition of input services as per the CCR, 2004 - time limitation - Held that - sales commission becomes part of sales promotion which gets squarely covered under Rule 2(l) of Cenvat Credit Rules, 2004 and the appellants are eligible to take credit of service tax - the Hon ble High Court of P & H in the case of Ambika Overseas 2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT have clearly held that the sale and manufacture are directly interrelated and the commission paid on sales needs to be taken as services related to sales promotion - CENVAT credit allowed - appeal allowed - decided in favor of assessee.

Issues:
- Whether sales commission paid by the appellant qualifies as an input service under CENVAT Credit Rules, 2004?
- Whether the impugned order allowing the sales commission as an input service is legally sustainable?
- Whether the sales commission has a direct nexus with sales related to the manufacture of the product?
- Whether the Explanation added to Rule 2(l) of CCR, 2004 applies retrospectively?
- Whether the appellant is eligible to take credit of service tax on sales commission?

Analysis:
1. Issue of Input Service Qualification: The case involved a dispute regarding the eligibility of sales commission paid by the appellant as an input service under CENVAT Credit Rules, 2004. The appellant claimed that the sales promotion activity, including sales commission, falls under the definition of input service. The Additional Commissioner treated this claim as a wrong availment of service tax, leading to a demand notice. The respondent argued that sales commission is directly related to boosting sales and, therefore, should be considered an input service. The Commissioner (A) allowed the appeal, setting aside the Order-in-Original, based on the interpretation of law and bona fide belief by the appellant.

2. Legality of Impugned Order: The appellant contended that the impugned order allowing sales commission as an input service was incorrect and not legally sustainable. The Revenue argued that sales commission does not fall within the definition of input service as it is a post-sale activity and not directly connected to the manufacture or clearance of final products. However, the Commissioner (A) upheld the appeal, citing various decisions and precedents that supported the view that sales commission is an input service directly attributable to sales and, consequently, related to the manufacture of the product.

3. Nexus with Sales and Manufacture: The core issue revolved around establishing a direct nexus between sales commission, sales activities, and the manufacturing process. The appellant argued that sales commission is an integral part of sales promotion, which ultimately contributes to increased manufacturing activity. The Commissioner (A) agreed with this argument, emphasizing the interrelation between sales and manufacturing, leading to the conclusion that sales commission is a service related to sales promotion and, therefore, qualifies as an input service.

4. Retrospective Application of Explanation: The appellant relied on an Explanation added to Rule 2(l) of CCR, 2004, through Notification No.2/2016, to support their claim that sales commission should be considered an input service. The appellant argued that this Explanation, being declaratory in nature, applies retrospectively. Citing the Essar Steels India Pvt. Ltd. case, the appellant contended that the Explanation clarifies the eligibility of sales commission as an input service, further supporting their position.

5. Eligibility for Service Tax Credit: After considering the arguments from both parties and examining the evidence, the Tribunal found the impugned order to be well-reasoned and legally supported. The Tribunal highlighted the direct nexus between sales commission and sales activities, emphasizing that sales promotion, including sales commission, is integral to boosting sales and, consequently, manufacturing activity. Relying on various judicial precedents and interpretations of the law, the Tribunal concluded that the appellant was eligible to take credit of service tax on sales commission, ultimately dismissing the appeal of the Revenue.

This detailed analysis of the judgment highlights the key issues, arguments presented by both parties, legal interpretations, and the final decision reached by the Tribunal.

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