2017 (7) TMI 932 - AT - Central Excise

Tribunal upholds assessee's appeal on cenvat credit eligibility for commission agent services

The Tribunal upheld the Commissioner's decision allowing the assessee's appeal and setting aside the Order-in-Original on the eligibility of cenvat credit ... CENVAT credit - It was observed that the assessee had availed cenvat credit on input services on the invoices issued by these consignment agents and the same appeared to be not correct as per Rule 2(l) of the CCR, 2004 - Held that: - the issue of entitlement of cenvat credit on input services provided by commission agent was pointed out by the audit on 08.12.2009 and thereafter a show-cause notice was issued on 18.04.2013 after the expiry of four years from the date of audit which is clearly barred by limitation - even on merit the issue is covered in favor of the assessee because the sales promotion has been specifically included in the definition of ‘input service' and vide N/N. 2/2016 CE dated 03.02.2016 it has been clarified that the sales promotion includes services by way of sale of dutiable goods on commission basis and this notification is made applicable retrospectively as held in the Essar Steels India Ltd. [2016 (4) TMI 232 - CESTAT AHMEDABAD] - appeal dismissed - decided against Revenue. Issues:Appeal against the order of Commissioner (Appeals) allowing the appeal of the assessee and setting aside the Order-in-Original regarding the eligibility of cenvat credit on input services provided by commission agents.Analysis:1. The appeal by the Revenue was directed against the order of the Commissioner (Appeals) accepting the appeal of the assessee and setting aside the Order-in-Original. The assessee was engaged in the manufacture of various products falling under Chapter 28 and 39 of the Central Excise Tariff Act, 1985. The issue arose when the audit revealed that the assessee had availed cenvat credit on input services provided by consignment agents, which was contested by the Revenue.2. The Revenue argued that the impugned order was not sustainable in law, emphasizing that investigation post-audit is not mandatory for issuing a show-cause notice. They contended that the notice was issued within the prescribed limitation period and that the Commissioner's order did not delve into the case's merits. The assessee, on the other hand, defended the order, stating that the extended limitation period was not applicable as the audit report had highlighted the credit issue years before the notice was issued.3. The assessee further argued that commission agent services qualified as eligible input services, citing relevant legal precedents. They highlighted that the definition of 'input service' included sales promotion, retroactively clarified by a notification. The Tribunal found the show-cause notice time-barred and upheld the eligibility of cenvat credit on commission agent services, in line with the legal interpretations provided by the assessee.4. After considering both parties' submissions and the evidence, the Tribunal found no fault in the Commissioner's order. The Tribunal noted that the show-cause notice was issued after the limitation period and upheld the eligibility of cenvat credit on commission agent services due to the inclusion of sales promotion in the definition of 'input service'. Consequently, the Tribunal dismissed the Revenue's appeal.This detailed analysis covers the issues raised in the legal judgment comprehensively, addressing the arguments presented by both parties and the Tribunal's reasoning for dismissing the Revenue's appeal.