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TMI Blog2013 (3) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... ax paid on the commission to the commission agents is eligible for availment of cenvat credit and accordingly appellant availed the cenvat credit. It is also undisputed that the appellant is a manufacturer and was filing regular monthly ARE-1 returns to the authorities and indicating therein availment of such cenvat credit. Thus the action of the appellant in taking the cenvat credit of the service tax to the commission agents could be out of bonafide belief as to eligibility to cenvat credit as it is in relation to the business of manufacturing and selling - the said bonafide belief of the appellant cannot be considered as erroneous and that too, to invoke the extended period of limitation for imposition of equivalent amount of penalty, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be heard, the ld. counsel is absent nor there is any request for adjournment. I take up the appeal filed by the appellant for disposal despite there being no representation from the appellant. 4. The relevant facts for consideration are the appellant herein has availed cenvat credit of service tax paid on the commission paid to the commission agents for the sale of their goods. It is also noticed that the appellant is to indicate the said availment of credit in their returns which has been filed with the authorities. The audit party took an objection that appellant is not eligible for such credit of the service tax paid on the commission paid to the commission agents as per the provisions of Rule 2(l) of the Cenvat Credit Rules, 2004. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed, it is their claim of the appellant no penalty is imposable as appellant has been filing the returns with the authorities as a manufacturer indicating therein the cenvat credit availed by them and there was no objection to the said such credit till the audit party took a different view. 6. Ld. Assistant Commissioner (A.R.), would submit that the judgment of the Hon ble High Court of Gujarat in the case of Cadila Healthcare Ltd. in tax appeal No.353 of 2010 and 204 of 2011 has held that service tax paid on the commission paid to an agent is not eligible as cenvat credit. He would submit that the department s appeal is for the enhancement of penalty to 100% as the assessee has not divulged to department that they had availed cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion to the commission agents is eligible for availment of cenvat credit and accordingly appellant availed the cenvat credit. It is also undisputed that the appellant is a manufacturer and was filing regular monthly ARE-1 returns to the authorities and indicating therein availment of such cenvat credit. In my considered view, the action of the appellant in taking the cenvat credit of the service tax to the commission agents could be out of bonafide belief as to eligibility to cenvat credit as it is in relation to the business of manufacturing and selling. I find that the said bonafide belief of the appellant cannot be considered as erroneous and that too, to invoke the extended period of limitation for imposition of equivalent amount of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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