2011 (7) TMI 980 - HC - Service Tax

Appeal dismissed - services held pre-removal input services under Rule 2(l) of Cenvat Credit Rules 2004

COMMISSIONER OF CENTRAL EXCISE, LUDHIANA Versus AMBIKA OVERSEAS

HC dismissed the revenue's appeal, upholding the Tribunal and Commissioner (Appeals) findings that the services for which CENVAT credit was claimed by the ... Entitlement to avail CENVAT credit - services provided by Overseas Commission Agents - Input services - Post removal services - Rule 2(l) of Cenvat Credit Rules, 2004 - HELD THAT:- 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 - learned counsel for the revenue was unable to justify that the claim of cenvat credit by the assessee was erroneous in any manner - Appeal is dismissed Issues involved:Appeal under Section 35G of the Central Excise Act, 1944 regarding the entitlement to avail CENVAT credit on services provided by Overseas Commission Agents as input services.Detailed Analysis:1. Entitlement to CENVAT Credit:The appellant disputed the entitlement of the respondent to avail CENVAT credit on services provided by Overseas Commission Agents, arguing that these services do not fall under the definition of 'input service' as per Rule 2(l) of the Cenvat Credit Rules, 2004. The Tribunal, however, upheld the respondent's claim, stating that the activities of canvassing and procuring orders were pre-removal activities related to sales promotion, thus qualifying as input services. The Tribunal emphasized that these activities were crucial for generating firm orders before goods could be removed for export. The judgment highlighted that sales promotion activities were explicitly included in the definition of input services, allowing the assessee to benefit from CENVAT credit.2. Background and Tax Liability:The respondent, engaged in manufacturing and exporting hand tools, paid overseas commission to non-resident commission agents for generating business. As a result, the respondent was liable to pay service tax on the overseas commission under the Service Tax Rules, 1994. The respondent deposited service tax and claimed CENVAT credit, which was later challenged by the revenue department. A show cause notice was issued, leading to the recovery of wrongly availed service tax and imposition of penalties. The Commissioner (Appeals) subsequently set aside the order, prompting the appellant-department to appeal before the Tribunal.3. Judicial Findings and Conclusion:The Tribunal, echoing the Commissioner (Appeals), concluded that the activities in question were pre-removal activities crucial for sales promotion, thus falling under the definition of input services. The judgment emphasized that the respondent, as a service recipient, had appropriately paid service tax and availed CENVAT credit. The Court found no legal basis to challenge the Tribunal's decision, dismissing the appeal by the appellant-department. The judgment highlighted that the Tribunal's reasoning was sound, and no substantial question of law warranted further consideration.In summary, the judgment addressed the dispute over the entitlement to CENVAT credit on services provided by Overseas Commission Agents, emphasizing the pre-removal nature of the activities and their alignment with sales promotion, thus qualifying as input services. The Court upheld the Tribunal's decision, dismissing the appeal by the revenue department due to the absence of any substantial legal issue warranting intervention.