2024 (9) TMI 767 - AT - Central Excise

Advertising services qualify as input services for manufactured goods when related to sales activities

Godrej Consumer Products Ltd Versus Commissioner of Customs, Central Excise& Service Tax, Panaji, Goa And Commissioner of Customs, Central Excise& Service Tax, Panaji, Goa Versus Godrej Consumer Products Ltd

CESTAT Mumbai allowed the appeal by remand in a CENVAT credit dispute concerning advertising services. The tribunal held that advertising services ... CENVAT Credit - advertising service - failure to comply with requirement in rule 6 of CENVAT Credit Rules, 2004 of maintaining separate records of consumption of advertisement services - rule 6(3) of CENVAT Credit Rules, 2004 - HELD THAT:- It is settled law that ‘advertising services’ is an input service for goods manufactured as long as it relates to goods being sold. That the procurement of such service for ‘HIT’ has been undertaken by the appellant-assessee is not in dispute by either side. That such credit could have been distributed to contract manufacturers is in the realm of the hypothetical as that is not a fact in the present dispute. The distribution of the eligible credit to the one unit of the appellant-assessee manufacturing the product is also not disputed by the appellant-Commissioner. It is only required to determine credit eligible to be utilised by the sole manufacturing facility in proportion to the contribution to the total turnover of the advertised product. The impugned order has not erred in computing the proportion and, indeed, there is no dispute on that score. It is only the remedy that is under dispute. The adjudicating authority has adopted the harshest of the methods without allowing the assessee to seek the most facilitative option. The impugned order is set aside to the extent of recovery determined therein - matter remanded back to the original authority to re-adjudicate the matter after taking into consideration the correctness of the reversal adopted by the appellant-assessee - appeal allowed by way of remand. Issues Involved:1. Eligibility for CENVAT credit on 'advertising services' for the period prior to and after 1st April 2011.2. Requirement for maintaining separate records for 'advertising services' under Rule 6 of CENVAT Credit Rules, 2004.3. Retrospective applicability of the Explanation inserted in Rule 2(e) of CENVAT Credit Rules, 2004.4. Distribution of CENVAT credit by the 'input service distributor' (ISD).Detailed Analysis:1. Eligibility for CENVAT Credit on 'Advertising Services':The primary issue revolves around the eligibility of M/s Godrej Consumer Products Ltd for CENVAT credit on 'advertising services' for the period from 2008-09 to 2011-12. The impugned order confirmed the eligibility of the entire tax paid on procurement of 'advertising services' for availment as CENVAT credit. However, it mandated the reversal of credit in proportion to the 'traded goods' in the overall turnover for the period post 1st April 2011, when 'trading' was deemed an 'exempted service' by law.2. Requirement for Maintaining Separate Records:The dispute also involves compliance with Rule 6 of CENVAT Credit Rules, 2004, which requires maintaining separate records of consumption of 'advertising services.' The assessee failed to maintain such records, leading to the proportionate reversal being deemed insufficient compliance. The adjudicating authority upheld the reversal at the rate specified in Rule 6(3) of the CENVAT Credit Rules, 2004, for the period 2011-12.3. Retrospective Applicability of the Explanation in Rule 2(e):The appellant-Commissioner sought the retrospective applicability of the Explanation inserted in Rule 2(e) of CENVAT Credit Rules, 2004, effective from 1st April 2011, to validate the demand for the prior period. The Tribunal, however, held that trading was not an 'exempted service' prior to 1st April 2011, and the Explanation added on 1st April 2011 was prospective and not retrospective. This was supported by decisions in Ingersoll Rand Technologies and Services Private Ltd v. Commissioner of Central Excise, Ghaziabad, and Trent Hypermarket, which clarified that substantive law introduced by an Explanation is presumed to have prospective effect unless a contrary intention is expressed.4. Distribution of CENVAT Credit by ISD:The assessee argued that as the owner of the goods and having borne the duty liability, they could not be barred from availment of such credit. They relied on various decisions, including Colgate Palmolive v. Commissioner of Central Excise and Coca Cola India v. Commissioner of Central Excise, to support their claim. The Tribunal noted that the appellant-assessee had distributed the credit to their single manufacturing unit in Goa, which was not disputed. However, the argument that the appellant-assessee was not an 'input service distributor' but a manufacturing facility was not in conformity with the facts.Conclusion:The Tribunal concluded that prior to 1st April 2011, 'trading' was not an 'exempted service,' and the assessee was not obliged to comply with Rule 6 for the deployment of 'advertising services.' For the period post 1st April 2011, the credit eligible to be utilized by the sole manufacturing facility should be in proportion to the contribution to the total turnover of the advertised product. The harsh method adopted by the adjudicating authority for recovery was set aside, and the matter was remanded back to the original authority for re-adjudication, allowing the assessee to seek the most facilitative option for reversal.(Order pronounced in the open court on 10/09/2024)