2021 (8) TMI 1029 - AT - Central Excise

Tribunal Partially Allows Appeals, Clarifies Input Services Eligibility

The tribunal allowed the appeals in part, setting aside demands and penalties except for aviation services, amounting to Rs. 66,290. Clearing charges, ... CENVAT Credit - input services - place of removal - Clearing charges paid to the Custom House Agent for export of goods - Commission on export sale - Material Handling Charges - Terminal Handling Charges - Bank Commission Charges - Aviation Charges - Courier Services - CBEC circular 999/6/2015-CX dated 28.02.2015 - HELD THAT:- In view of the Board Circular and Larger Bench decision in M/S HONEST BIO-VET PVT. LTD. VERSUS CCE AHMEDABAD-I [2014 (11) TMI 579 - CESTAT AHMEDABAD], it is held that the place removal in case of the exports, would be upto the point when goods are loaded on the ship or the depot from where the goods are finally sold, and all the services that are received for exporting the goods till that point shall be covered by the definition of “input services” as per Rule 2 (l) of The CENVAT Credit Rules, 2004. Hence the services of Custom House Agent (Clearing Charges), Material Handling Charges, Terminal Handling Charges will be admissible to the Appellant. Commission paid on export sales - HELD THAT:- Commission on the Export Sales is the commission paid by the Appellant to their foreign commission agent for promoting the sale of their products in that country. Service Tax in respect of these services is paid by them on reverse charge basis. The issue in respect of admissibility of CENVAT Credit of the Service Tax paid on the Commission Charges paid for export of goods has been considered by Hon’ble Madras High Court in THE COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI VERSUS INTIMATE FASHIONS INDIA (P) LTD. [2019 (8) TMI 1311 - MADRAS HIGH COURT] where it was held that the service tax paid on commission to foreign agents could not denied the benefit of Cenvat credit under Cenvat Credit Rules, 2004 - the Commission paid on export sales is nothing but for sale promotions and is covered by the definition of input services under Rule 2 (l) of the CENVAT Credit Rules, 2004. Bank Commission charges - HELD THAT:- Issue in respect of “Bank Commission charges” has been considered by tribunal on number of occasions, and tribunal has constantly held in the favour of allowing the CENVAT Credit of Service tax paid on these charges - reliance can be placed in the case of M/S SUNDARAM CLAYTON LTD. VERSUS CCE, CHENNAI - II [2016 (6) TMI 161 - CESTAT CHENNAI] where it was held that finance being the necessary input for the purpose of carrying out the manufacturing activity and money is invested to carryout manufacture, credit cannot be denied for such services availed - the Service Tax paid on Bank Commission Charges shall be admissible as CENVAT Credit to the Appellant. Courier Services - HELD THAT:- Courier Services are utilized by the appellants for the delivery of documents to the customers and statutory bodies. In fact these services are used for conducting their business by the Appellants - courier services are input services for appellant for conducting their business. Hence CENVAT Credit will be admissible of Service Tax paid on these services. Travel charges incurred towards the transportation of their senior executives/ employees for attending seminars/ conference for conduct of their business - Aviation Services - HELD THAT:- For qualifying as input service, the use of the service was to be in manufacture of the finished products. The services in respect of which the CENVAT Credit is claimed by putting them under the category of Aviation Services, do not qualify the test laid down as per the Rule 2 (l), hence CENVAT Credit in respect of these services shall not be admissible. Extended period of limitation - penalties - HELD THAT:- There was no suppression etc, in the case for invoking extended period of limitation - as we have held in favour of the Appellants on merit in respect of all the disputed services except for those under category of “Aviation Services” the issue of limitation becomes infructuous in respect of these services - there was no case for invoking extended period of limitation, as there was no suppression the penalties imposed on the Appellant equivalent to the demand confirmed cannot be upheld. Appeal allowed in part. Issues Involved:1. Admissibility of CENVAT Credit on various services received after the removal of goods from the factory.2. Definition and interpretation of 'input services' under Rule 2(1) of the CENVAT Credit Rules, 2004.3. Determination of 'place of removal' in the context of export goods.4. Applicability of extended period of limitation and penalties.Issue-Wise Detailed Analysis:1. Admissibility of CENVAT Credit on Various Services:The tribunal examined the admissibility of CENVAT Credit on several services including Clearing Charges, Commission on Export Sales, Material Handling Charges, Terminal Handling Charges, Bank Commission Charges, Aviation Charges, and Courier Services. The Commissioner had previously disallowed these credits, arguing that they did not fall within the definition of 'input services' as per Rule 2(1) of the CENVAT Credit Rules, 2004.2. Definition and Interpretation of 'Input Services':The tribunal noted that Rule 2(1) of the CENVAT Credit Rules, 2004 defines 'input service' as any service used by a manufacturer whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal. The definition is inclusive and not exclusive, encompassing services used in relation to business activities such as accounting, auditing, financing, recruitment, quality control, etc. The Commissioner had interpreted the definition restrictively, applying the principle of Ejusdem Generis to limit the scope of 'input services.'3. Determination of 'Place of Removal':The tribunal referred to the CBEC Circular No. 999/6/2015-CX dated 28.02.2015 and the larger bench decision in Honest Biovet [2014 (310) ELT 526 (T-LB)], which clarified that the 'place of removal' in the case of exports would be the port or depot from where the goods are finally sold. This interpretation allowed services related to the export process, such as Custom House Agent (CHA) services, Material Handling Charges, and Terminal Handling Charges, to be considered as 'input services' eligible for CENVAT Credit.4. Applicability of Extended Period of Limitation and Penalties:The tribunal found that there was no suppression of facts by the appellant, and thus the extended period of limitation could not be invoked. Consequently, penalties equivalent to the demand confirmed could not be upheld. The tribunal cited the Supreme Court decision in Rajasthan Spinning and Weaving Mills, which emphasized that penalties under Section 11AC of the Central Excise Act, 1944, depend on the existence of specific conditions such as suppression of facts.Judgment:- Clearing Charges (CHA), Material Handling Charges, Terminal Handling Charges: The tribunal held these services to be admissible as 'input services' under Rule 2(1) of the CENVAT Credit Rules, 2004, based on the interpretation of 'place of removal' as the port or depot in the case of exports.- Commission on Export Sales: The tribunal referred to the Madras High Court decision in Intimate Fashions India [2019 (31) GSTL 22 (Mad)] and held that the commission paid to foreign agents for promoting sales is covered under 'sales promotion' and thus qualifies as 'input services.'- Bank Commission Charges: The tribunal followed previous decisions, including Sundaram Clayton Ltd [2016 (42) STR 741 (T)], and held that financial services are necessary for manufacturing activities, thus qualifying for CENVAT Credit.- Courier Services: The tribunal upheld the admissibility of CENVAT Credit on courier services used for business activities, citing Apar Industries [2010 (20) STR 624 (T)].- Aviation Charges: The tribunal did not find sufficient support for the claim of CENVAT Credit on aviation charges used for employee travel, as these services did not qualify as 'input services' under the pre-2011 definition.- Limitation and Penalties: The tribunal held that there was no suppression of facts, and thus the extended period of limitation and penalties could not be applied.Conclusion:The appeals were partly allowed, with the tribunal setting aside all demands and penalties except for the demand related to aviation services amounting to Rs. 66,290.