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TMI Blog2014 (1) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... l questions of law. "A. Whether the Tribunal was justified in law in passing the impugned order dated 01.03.2013 allowing the revenue's appeal without considering the contrary decisions of the Punjab and Haryana High Court and the Gujarat High Court in respect of CENVAT credit eligibility of service tax on sales commission in their entirety and the consequences of revenue not filing any appeal against the decision of the Punjab and Haryana High Court in Ambika Overseas case reported in 2012(25) STR 348 (P & H)? B. Whether the Tribunal was justified in facts and law in passing the impugned order dated 1.3.2013 by relying exclusively on the Gujarat High Court decision reported as Commissioner of Central Excise, Ahmedabad-II Versus Cadila He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g same issue and same definition of "input service" under the Cenvat Credit Rules, 2004? F. Whether the Tribunal's order dated 1.3.2013 allowing the appeal of revenue by relying only on Gujarat High Court decision reported as Commissioner of Central Excise, Ahmedabad-II Vs. Cadila Health Care Ltd.2013 (30) STR 3 (Guj)is perverse, absurd and patently illegal inasmuch as the services of commission agents / brokers are availed for procuring the sales orders against which the manufacturer makes direct supplies to the customers and the commission agents/ brokers get the commission and therefore, these services of commission agents / brokers are in the nature of sales promotions, an activity specifically covered in the inclusive in the definitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11, the Commissioner (Appeals) allowed the said appeal and quashed and set aside the order in original. 2.2. Feeling aggrieved and dissatisfied with the order passed by the Commissioner (Appeals)dated 23.5.2011, the Department preferred appeal before the CESTAT and by impugned judgment and order the learned CESTAT has allowed the said appeal and has restored the order in original by holding that in view of the decision of the Jurisdictional High Court in the case of Cadila Health Care Limited (Supra), the appellant was not eligible for Cenvat Credit on Sales Commission Services obtained by them. 2.3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned CESTAT, the appellant has preferred the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate for the appellant. At the outset, it is required to be noted that issue involved in the present appeal i.e. whether the appellant would be entitled to Cenvat Credit on Sales Commission Services obtained by them is now not resintegra in view of the decision of this Court in the case of Cadila Health Care Limited (supra). At this stage, it is required to be noted that while passing the OIO the department relied upon and followed the decision of the jurisdictional High Court in the case of Cadila Health Care Limited (supra). The appellant has heavily relied upon the CBEC circular dated 29.4.2011 and according to the appellant, as per the CBEC circular dated 29.4.2011, the appellant shall be entitled to Cenvat Credit on Sales Commission Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (supra) matter may be referred to the Larger Bench as there would be discrimination amongst the similar unit is concerned, the said cannot be accepted. At the outset, it is required to be noted that decision of the jurisdictional High Court - this Court in the case of Cadila Health Care Limited (supra) is challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court is seized with the matter. It is reported that judgment and order passed by this Court in the case of Cadila Health Care Limited (Supra), has not been stayed. The decision of the jurisdictional High Court is binding to the department rather than decision of the other High Court. When there are two contrary decisions, one of jurisdictional High Court and another of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant to refer the matter to the Larger Bench is hereby rejected. 7.0. As stated above and as such it is not disputed by the learned advocate for the appellant that as such issue whether the appellant would be entitled to Cenvat Credit on Sales Commission Services obtained by them is squarely covered against the appellant by the decision of this Court in the case of Cadila Health Care Limited (supra). No error has been committed by the learned CESTAT in relying upon the decision of this Court in the case of Cadila Health Care Limited (supra) and allowing the appeal preferred by the revenue and in restoring the order passed in OIO and in holding that the appellant would not be entitled to Cenvat Credit on Sales Commission Services obta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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