2018 (1) TMI 1391

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..... ommission paid to the overseas agents - appeal dismissed - decided against Revenue.
MR ANIL CHOUDHARY, MEMBER (JUDICIAL) And MR ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) Appellant: Sh. Rajeev Ranjan & P.K. Dubey, DRs Respondent: Ms. Santosh Khandelwal, CS ORDER PER ANIL CHOUDHARY : The present appeal is filed by the Department against the order-in-Original No. 47/Commr/Noida/2012-13 dated 30.11.2012 passed by the Commissioner, Customs & Central Excise, Noida. The period in dispute is October 2006 to September 2011. 2. The brief facts of the case are that, the assessee-Respondent had availed various services from the foreign based companies for which they paid service tax under reverse charge as per Section 66A of the Finance Act, .....

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..... or (b) an amount equal to CENVAT credit taken on inputs if such inputs are removed as such or after being partially processed; or (c) an amount equal to the CENVAT credit taken on capital goods if such capital goods are removed as such; or (d) an amount under sub rule (2) of rule 16 of Central Excise Rules, 2002; or (e) service tax on any output service" From the record, it also appears that an identical issue has come up for consideration before the Tribunal in the case of M/s Indian Acrylic Ltd. vs CCE, Chandigarh-II, 2012 (28) STR 354 (Tri-Del.), wherein it was observed that: "8. Similarly, the Tribunal in the case of Shree Rajasthan Syntex Ltd. v. CCE reported in 2011 (24) S.T.R. 670 (Tri.-Del.) has held that such utilisatio .....

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..... service by fiction of law and, therefore, the service provided by him will be deemed to be output service under Rule 2(p) of the Rules." 9. Admittedly during the relevant period there was no change in the provisions of Rule 2(r). As such by following the Division Bench judgment as referred (supra). I hold that the appellant is entitled to utilise the Cenvat credit for discharge of Service Tax for the commission paid to the overseas agents. Accordingly, the impugned orders are set aside. The appeals are allowed with consequential relief to the appellants." 6. By following the earlier decision (supra), we find no reason to interfere with the impugned order and the same is hereby sustained along with the reasons mentioned therein. 7. In .....

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