9911796707
TMI Blog2023 (3) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... so, so as to overcome the difficulty faced by the assesses in view of Gujrat High Court Decision. In the present case, the Commission Agent is not rendering any service towards sale/Sales Promotion of the present Appellant. The Commission Agent is only an Agent engaged in collection of debts from various subscribers. Therefore, the very premise to issue Show Cause Notice basing on the decision of the Hon ble Gujarat High Court is erroneous on the part of Department. The Hon ble Gujarat High Court judgment is on an entirely different type of Commission Agent and is not applicable to the facts of present case. The Hyderabad Tribunal in the case of PEPSICO INDIA HOLDINGS (PVT.) LTD. VERSUS COMMISSIONER OF CENTRAL TAX, TIRUPATI [ 2021 (7) TMI 1094 - CESTAT HYDERABAD ] has held that Services used in setting up the factory are, therefore, unambiguously covered as input services under Rule 2(l)(ii) of the Cenvat Credit Rules, 2004 as they stood during the relevant period (post 1-4-2011). The mere fact that it is again not mentioned in the inclusive part of the definition makes no difference. Once it is covered in the main part of the definition of input service, unless it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant have also submitted some sample copies of the invoices raised by the service provider. The Ld. Advocate submits that on identical issue, the coordinate Bench of CESTAT, Chennai has taken the view that they are eligible for the Cenvat Credit and submits a copy of the relevant case law of Vodafone Essar Cellular Ltd. Vs. Commr. of CGST, Chennai, 2018 (9) TMI 985-CESTAT Chennai. 4. He also relies on similar issues decided by Mumbai Tribunal in the following cases:- (i) Bajaj Finance Ltd. Vs. CCE, Pune 2018 (10) GSTL 251 (Tri. Mumbai) (ii)Bajaj Finance Ltd. Vs. CCE, Pune, 2019 (6) TMI 1593-CESTAT Mumbai 5. He further submits that the allegation in the SCN was only to the extent that the assessee is not eligible to avail Cenvat Credit on Commission Agent Services as per the Hon ble Gujarat High Court s judgment in the case of Cadila Healthcare Ltd., however the Commissioner (Appeals) has traversed beyond the SCN and has held that the service of collection of debt is received subsequent to the mobile services provided by the Appellant and therefore the credit of the same is not allowed. The Appellant relies on the following case laws: (i) Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no CENVAT credit has been availed on exempted goods. It was contended that service tax paid on commission paid to commission agents for sale of final products is available as credit according to the inclusive part of the definition of input service, which includes services in relation to sales promotion. Reference was made to the definition of business auxiliary service as defined under Section 65(19) of the Finance Act, 1994 which lays down that business auxiliary service means any service in relation to (i) promotion or marketing or sale of goods produced or provided by or belonging to the client or (ii) promotion or marketing of service provided on behalf of the client and includes services as a commission agent. (i) The Adjudicating Authority held that on a perusal of the definition of commission agent as defined under clause (a) to the Explanation under Section 65(19) of the Act, a commission agent is a person who acts on behalf of another person and causes sale or purchase of goods. In other words, he is directly responsible for selling or purchasing on behalf of another person and that such activity cannot be considered as sales promotion. According to the Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectly made by the commission agent to the consumer . 12. From the above extract, it can be observed that the issue before the Hon ble High Court was in respect of sale of goods, promotion of sale of goods, etc. by the Commission Agent The Hon ble High Court held as Commission Agent in this case is only selling the goods and not undertaking any Sales Promotion work, the Respondent would not be eligible for the Cenvat Credit. Further it would be relevant to note here that an amendment was brought in w.e.f. 3.2.2016 to allow Cenvat Credit on Sales Promotion also, so as to overcome the difficulty faced by the assesses in view of Gujrat High Court Decision. 13. In the present case, the Commission Agent is not rendering any service towards sale/Sales Promotion of the present Appellant. The Commission Agent is only an Agent engaged in collection of debts from various subscribers. Therefore, the very premise to issue Show Cause Notice basing on the decision of the Hon ble Gujarat High Court is erroneous on the part of Department. The Hon ble Gujarat High Court judgment is on an entirely different type of Commission Agent and is not applicable to the facts of present case. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Cenvat Credit Rules, 2004 reads as under:- xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx From the above definition it can be seen that any service used for providing output service is an input service. As discussed above, the service of taking repossession of the vehicle which is an activity in relation to recovery of the loan is used for overall service of lending. Therefore as per the main part of the definition, 16. The definition of input service as per Rule 2 (l) of Cenvat Credit Rules, 2004 during the period under dispute reads as under:- input service means any service, - (i) used by a provider of [output service] for providing an output service; or (ii) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and Other Financial Services and Technical Services are not specifically excluded by the exclusion portion of the definition and in any case they are services essential directly or in relation to manufacture or business activities, the same would definitely fall within the ambit of Rule 2(l) ibid. In the event, I hold that all the services disputed herein are eligible input services for the purpose of Rule 2(l) ibid. 19. The Hyderabad Tribunal in the case of Pepsico India Holdings (Pvt.) Ltd. Vs. Commr. of Central Tax, GST Commissionerate, Tirupati 2022 (56) G. S. T. L. 22 (Tri.-Hyd.) has held as under:- 21. For a service to qualify as input service under Cenvat Credit Rules, 2004 post 2011, the service in question need not be covered even by the very wide definition of manufacture under Section 2(f) of the Central Excise Act. Any service which is used not only in manufacture but also in relation to manufacture will also qualify as input service. The scope of input service is further enlarged with the expression whether directly or indirectly used in the definition of input service. Thus, there are : (a) Actual manufacture; (b) Processes incidental or a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
