2014 (11) TMI 428 - AT - Service Tax

Tribunal allows Cenvat credit on C&F agent's commission, disallows credit on commission to JAS Marketing.

COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX TIRUPATI Versus NUTRINE CONFECTIONERY CO LTD

The Tribunal partly allowed the Revenue's appeal, disallowing Cenvat credit on the commission paid to JAS Marketing Pvt. Ltd. However, it upheld the ... CENVAT Credit - scope of input services - eligibility of post sale services as input services - C & F agent service - Receipt of commission - liaison work pertaining to sales tax - scope of the term 'place of removal' - Held that:- the services in relation to the activities of removing goods from factory, storing at the depot or C & F agent’s premises and delivering the same to the customer are falling within the scope and ambit of the said definition clause. - the activities of the C & F agent are confirming to the definition of 'input service', and as such, the respondent is eligible to take Cenvat credit of service tax amount paid on the C & F commission. Credit on Liaison work pertaining to sales tax - Held that:- such activities are incidental and ancillary to the depot operations, where the main function is to dispatch the goods to the customers. - credit allowed. Commission agent's services - Held that:- mere selling agent of goods cannot be equated with the agent providing sales promotion activities - in the case in hand, the activities of M/s JAS Marketing as indicated in the show cause notice, clearly exhibit that it is the selling agent acting on behalf of the respondent. - Credit not allowed. - Decided partly in favour of Revenue. Issues Involved:1. Eligibility of Cenvat credit on service tax paid for C & F agent's commission.2. Eligibility of Cenvat credit on service tax paid for commission to JAS Marketing Pvt. Ltd.3. Validity of documents for claiming Cenvat credit.Detailed Analysis:1. Eligibility of Cenvat Credit on Service Tax Paid for C & F Agent's Commission:The Revenue appealed against the Commissioner (Appeals) decision, which allowed Cenvat credit on service tax paid for C & F agent's commission. The Revenue argued that services provided by the C & F agent post-sales, such as dispatching goods to dealers, collecting payments, and liaising on sales tax matters, do not qualify as 'input service' under Rule 2(l) of the CENVAT Credit Rules, 2004 (CCR). The Tribunal, however, affirmed that the definition of 'input service' includes 'clearance of final products from the place of removal,' and the term 'place of removal' encompasses depots and consignment agents' premises as per Section 4(3)(c) of the Central Excise Act, 1944. Therefore, services related to storage and dispatch from these locations qualify as 'input service,' making the respondent eligible for Cenvat credit on the C & F agent's commission.2. Eligibility of Cenvat Credit on Service Tax Paid for Commission to JAS Marketing Pvt. Ltd.:The Commissioner (Appeals) had allowed Cenvat credit on the commission paid to JAS Marketing Pvt. Ltd., considering it as a sale promotion activity. The Revenue contended that the commission paid to JAS Marketing was for selling goods to a specific customer (Defence Canteen Stores Department), not for general sales promotion. The Tribunal agreed with the Revenue, referencing the Gujarat High Court's judgment in Cadila Healthcare Ltd., which distinguished between sales promotion and mere selling activities. The Tribunal concluded that the commission paid to JAS Marketing was for selling goods to an individual customer and did not qualify as 'input service' for Cenvat credit purposes.3. Validity of Documents for Claiming Cenvat Credit:The Revenue argued that the respondent used non-prescribed documents to claim Cenvat credit. The Tribunal noted that this issue was not raised before the first appellate authority and that the relevant documents were not presented during the appeal. However, recognizing the statutory requirement for prescribed documents, the Tribunal remanded the matter to the original authority to verify the validity of the documents submitted by the respondent for claiming Cenvat credit.Conclusion:The Tribunal partly allowed the Revenue's appeal, disallowing Cenvat credit on the commission paid to JAS Marketing Pvt. Ltd. but upheld the eligibility of Cenvat credit on the C & F agent's commission. The case was remanded to the original authority to verify the validity of the documents used for claiming Cenvat credit.