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TMI Blog2019 (1) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... owing the assesees’ Appeal - appeal dismissed - decided against Revenue. - Service Tax Appeal No. ST/52475/2018 [SM] - A/50030/2019-SM[BR] - Dated:- 2-1-2019 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Ms. Tamana Alam, AR Present for the Respondent: Mr. Himanshu Bansal, Advocate ORDER PER: RACHNA GUPTA The appellants herein are engaged in manufacture of excisable goods i.e. optical fibre and clearance of the same on payment of central excise duty and are availing cenvat credit on input services. During the course of audit of records of the appellant, Department observed that the appellant was paying sales commission to the sales agent/ commission agents and was taking cenvat credit of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the appellant that though decision of Hon ble Gujarat High Court in the case of Cadila Health Care Ltd. (supra) has been relied upon by the Department to deny the Commission agent Services as an input service but the impugned service is an input service under Rule 2(l) of Cenvat Credit Rules, as has been held by Hon ble High Court of Punjab and Haryana in the case C.C.E. Vs. Ambika Overseas 2012 (278) E.L.T. 524. Since both these decisions have created confusion that the explanation to Rule 2(l) got inserted vide Notification No. 02/2016 dated 03.02.2016 allowing the cenvat credit on Sales Commission Agent Services. It is impressed upon that the same is retrospective in nature as was held by the Tribunal Ahmedabad in the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of taking cenvat credit. The Hon ble High Court of Punjab Haryana in Ambika Overseas (supra) case had come to the conclusion as follows :- 8. The Tribunal while affirming the order of Commissioner (Appeals) and adjudicating the issue in favour of the respondent had come to the conclusion that the activities in respect of which cenvat had been filed were pre-removal activities and the same could not be held to be post removal. It was further observed that canvassing central excise appeal No. 43 of 2011 and procuring orders were in relation to sales promotion and would fall under sales promotion activities. These activities were thus included in the definition of input services and the assessee was entitled to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016. Accordingly, the Notification is not precisely an amendment but a clarification to the already existing Circular of the Department. This Tribunal in the case of Essar Steel (supra) has clarified that the said Notification has to be considered as declaratory in nature only and therefore has to be given the retrospective effect. Further, the issues is no more res integra. It has been decided by this Tribunal itself vide Final Order No. 57044 of 2017 dated 09.10.2017 wherein the previous decision bearing Final Order No. 56683-85 dated 28.07.2017 was held upon wherein was examined the issue alongwith he decision of Hon ble Gujarat High Court and Hon ble Punjab Haryana High Court. Vide another Final Order No. A/71064-71073/2017 dated 05.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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