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TMI Blog2022 (4) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... The Appellant is availing Cenvat credit on various inputs, input services and capital goods in terms of the provisions as laid down under the Cenvat Credit Rules, 2004. The Appellant had entered into an agreement with M/s Nicco Parks and Resorts Ltd. for sale of their products from the latter's premises. For this purpose, the Appellant paid upfront fees and also made payment based on quantity sold during the period from 1st April, 2015 to 2nd February 2016. The scrutiny revealed that the Appellant availed cenvat credit of service tax paid on invoices raised by M/s Nicco Park and Resorts Ltd. towards the sales commission, which accordingly to the show-cause notice, did not qualify as eligible input service. 2. The Adjudicating Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2004. He also referred to the Department's Circular No.943/4/2011-CX. dated 29.04.2011 at Sl.No.5 and the Board's Instruction F.No.96/85/2015-CX.I dated 07.12.2015 at Point No.B.30. The Ld.Advocate further submitted that the issue whether the definition of "input service" specified under Rule 2 (l) of the Cenvat Credit Rules, 2004 as it stood prior to 3rd February, 2016, covers sales commission as eligible "input service" and the effect of the Explanation what has been added to the definition w.e.f.03.02.2016. He vehemently submitted that the Explanation inserted under Rule 2 (l) w.e.f. 03.02.2016, has the retrospective effect so as to cover the period upto 03.02.2016. In support of his submissions, he relied upon the following decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as the availment of cenvat credit is concerned, had been regularly submitted. The details of the credit could not be mentioned therein as there was no scope to furnish any such details. He vehemently argued that the Department was not prevented from making up its mind in the matter for issuance of the show-cause notice within the normal period of limitation. In support of his submission, he relied on the various decisions and some of them are as under : (i) 2017-TIOL-463-CESTAT-DEL : CCE,Raipur Vs. M/s Drolia Electro Steel Pvt. Ltd. (ii) 2016-TIOL-1959-CESTAT-DEL : CCE & ST Vs. ZYG Pharma Pvt. Ltd. (iii) 2016-TIOL-1967-CESTAT-HYD : M/s Ultretech Cement Ltd. Vs. C & CCEx. (iv) 2017 (49) STR 84 (Tri.-Hyd.) : CC,CE & ST Vs. Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 (25) STR 348 ( P & H), had clearly held that the sale and manufacture are directed inter-related and the commission paid on sales needs to be accounted for as services related to sales promotion. Further, I follow the ratio of the decision of the Division Bench of this Tribunal in the case of Essar Steel India Ltd. cited supra, wherein the Tribunal, after discussing all the previous cases and Rules of interpretation, have held that the "Explanation" inserted in Rule 2 (l) of Cenvat Credit Rules, 2004 vide Notification No.2/2016-CE (N.T.) dated 03.02.2016 is declaratory in nature and is applicable retrospectively. 9. In view of the above discussions, the impugned order cannot be sustained and is, therefore, set aside. 10. The Appeal fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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