2023 (12) TMI 6

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....ar Maroria, AOR Mr. Rupesh Kumar, Adv. Mr. Raghav Sharma, Adv. Mr. Udai Khanna, Adv. Mr. Prasanjeet Mahapatra, Adv. Mr. Bhaskar Sundaram, Adv. ORDER Being aggrieved by the judgment dated 07.11.2012 passed by the Division Bench of the High Court of Gujarat in Tax Appeal Nos.353/2010 and 204/2011 insofar as the controversy relating to the claim of Input Tax Credit on commission paid to the foreign agent is concerned, the appellant-assessee had preferred these appeals. We have heard learned senior counsel Mr. Jay Savla for the appellant-assessee and learned counsel Mr. Rupesh Kumar for the respondent -Department and perused the material on record. During the course of submission, our attention was drawn to what was recorded by the ....

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....the impugned order and contended that even in the absence of there being any categorical finding given by the Tribunal on the basis of what was stated by the adjudicating authority, the High Court has independently interpreted the provisions and applied the same to the facts of the case and therefore, the impugned judgment and order of the High Court would not call for any interference. We have considered the respective submissions in light of what has been stated in paragraph 5.2(ii) of the judgment of the High Court which for immediate purpose could be extracted as under : "The Tribunal has held that foreign commission agent service is in the nature of sales promotion and without any elaborate discussion in respect thereof has....

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....resh consideration by giving an opportunity to the appellant to place on record the necessary documents including the agreement entered into by the assessee with the concerned agents, the relevant invoices etc. In the circumstances, the impugned judgment and order of the High Court as well as of the CESTAT are set aside and the matters are remanded to CESTAT for a fresh consideration. In view of the observations made above, the appellant-assessee is given an opportunity to place on record the relevant documents so as to assist CESTAT to arrive at a categorical finding on the nature of payment made by the assessee to the foreign agent and as to whether the assessee is entitled to claim input tax credit on the said payment. It is needle....