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TMI Blog2014 (2) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... e case on merits - the factum of having taken CENVAT credit on sales promotion was suppressed by the appellant willfully with an intention to avail CENVAT credit irregularly - They might have filed returns periodically but those returns did not disclose the above material fact to the department - The plea of bona fide belief has not been substantiated - the appellant has not made out prima facie case in their favour – the appellant directed to pre-deposit an amount of Rupees Ten lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted. X X X X Extracts X X X X X X X X Extracts X X X X ..... learned consultant has also claimed support from CCE Vs. Ambika Overseas [2012 (25) S.T.R. 348 (P&H)]. Reliance has also been placed on the Board's Circular No. 943/4/2011-CX dated 29.04.2011 (Sl. No. 5). Claiming support from the decision and the circular, the learned consultant submits that CENVAT credit of the service tax paid on the commission paid by the appellant to IOCL was admissible to the appellant and therefore waiver and stay are liable to be granted against the impugned demand. 3. Per contra, the learned Superintendent (AR) submits that, on a similar set of facts, the Hon'ble Gujarat High Court considered the definition of commission agent given under the definition of Business Auxiliary Service and held that the services re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was maintaining a bona fide belief during the period of dispute that they were entitled to CENVAT credit of the service tax paid on sales commission paid to IOCL. It is further argued that, where two views are possible on the issue, no intention to avail inadmissible CENVAT credit can be attributed to the appellant. 5. After giving careful consideration to the submissions, we have not found prima facie case for the appellant either on merits or on the ground of limitation. 6. The Hon'ble Gujarat High Court in the case of Cadila Healthcare Ltd. considered a similar set of facts and examined the issue as to whether the manufacturer could claim CENVAT credit of the service tax paid on the commission paid by him to a commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion exhaustively. The show-cause notice clearly alleged that the factum of having taken CENVAT credit on sales promotion was suppressed by the appellant willfully with an intention to avail CENVAT credit irregularly. The show-cause notice alleged that this fact was noticed by the department only at the stage of audit. These allegations, prima facie, were not successfully rebutted by the assessee. They might have filed returns periodically but those returns did not disclose the above material fact to the department. The plea of bona fide belief has not been substantiated. We have not been shown any copy of the reply to the show-cause notice. However, we have perused the gist of the reply as noted in the order-in-original, which indicates tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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