TaxTMI 
TaxTMI 
2019 (8) TMI 1838
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....referred to as 'Consignment Stockist'). Pursuant to the audit of records of the appellant, a Show Cause Notice dated 04.11.2016 was issued to the appellant wherein it was alleged that the services rendered by Consignment Stockist is not covered under the definition of 'input services' as per Rule 2(l) of the Credit Rules for the reason that the said services are not related to 'sales promotion' as required in the said Credit Rules. The said SCN culminated into adjudication order dated 24.05.2018 whereby the demand for recovery of cenvat credit amounting to Rs.3,99,07,973/- was confirmed together with applicable interest and penalty of equal amount was imposed. The appellant is in appeal before us against the said adjudication order. 3. Heard Sri Rajeev Agarwal, CA, for the appellant and Sri Sumit Mukhopadhyay, Ld.A.R. for the Revenue. 4(i). The Ld. CA for the appellant submitted that the subject contract between the appellant and the Consignment Stockist is to foster and promote sale, inform about prospective demand, distribution and sale of appellant's goods, providing warehouse facility etc. He submitted that the responsibility assigned to the Consignment Stockist is not restri....
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....cts of the both cases are distinct from each other. 4(iii). He further stated that pursuant to the amendment made in Rule 2(I) of Credit Rules, vide Notification No. 02/2016-CE dated 03.02.2016, wherein Explanation has been added to clarify that sales promotion would include services by way of sale of dutiable goods on commission basis. He stated that pursuant to said amendment, even mere selling activities on commission basis will constitute input service and eligible for credit. He also submitted that the said amendment being clarificatory in nature would have retrospective application and would also be applicable for the impugned period from October 2011 to February 2016. He relied upon the decision of Ahmedabad Bench of this Tribunal in Essar Steel India Ltd. v. CCE &ST, Surat 2016 (335) ELT 660 (Tri-Ahm) wherein it has been held that Explanation inserted in Rule 2(l) of Credit Rules is declaratory in nature and thus applicable retrospectively. 4(iv). The Ld. CA also contested the demand on time bar. He submitted that the availment of credit was duly disclosed in ER-1 returns filed with the department. He stated that in the absence of any column in the return to disclose the ....
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.... the place of removal; but excludes services......." In view of the above, we observe that the services undertaken by the concerned agents for sales promotion are included in the definition of input services. We find that the very basis followed by the Ld. Commissioner to deny credit by merely relying on the Gujarat High Court decision is not correct inasmuch as the facts appearing in the said decision is clearly distinguishable with the case in hand. We have also perused the amendment made in the definition of 'input service' whereby an Explanation has been added vide Notf. no. 2/2016-CE(NT) dtd 03.02.2016 which reads as below- "Explanation. - For the purpose of this clause, sales promotion includes services by way of sale of dutiable goods on commission basis." We find that the issue relating to eligibility of credit on commission agent services is no longer res-integra inasmuch as this Tribunal in Essar Steel India Ltd. (Supra), as also relied by the appellant, has held that the above amendment would be applicable retrospectively and would cover cases for the past period also. The co-ordinate Bench of this Tribunal at Ahmedabad held as below: "22. An explanation inserte....
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....sidered the issue of marketing or sale of goods and this Tribunal has examined that issue in the case of Essar Steel India Ltd. (supra) wherein it has been held that the assessee is entitled to avail Cenvat credit for commission paid to the commission agent who effected the sale of goods manufactured by the appellant. Further, I find that Hon'ble High Court of Punjab & Haryana in the case of Commissioner of Central Excise, Ludhiana v. Ambika Overseas reported in 2011 (07) LCX 0196 has held that Cenvat credit on service tax paid to selling agent for sale of goods is admissible as Cenvat credit. Therefore, as there are contrary judgments, in that circumstance without relying on either of the judgment of the Hon'ble High Courts, we decide the issue independently in the light of the decision of this Tribunal in the case of Maheshwari Solvent Extraction Ltd. v. Commissioner of Central Excise, Nagpur reported in 2014 (299) E.L.T. 116 (Tri.-Mumbai) wherein it has been held that if there are contrary view of the Apex Court, in that circumstance the Adjudicating Authority is independent to take any view on merits of the case. Therefore, we are taking independent view and hold that appellant....