TaxTMI 
TaxTMI 
2024 (3) TMI 450
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.... by the Audit team and letter was issued on 02/04/2014 directing them to reverse the Cenvat Credit of Rs. 36,46,798/- on the ground that they are not eligible to take the Cenvat Credit for the commission amount paid to commission agent. For raising this objection, the Department relied on the case law of CCE, Ahmedabad Vs. Cadila Healthcare Ltd.-2013 (30) STR 3 (Guj. High Court). The Appellant filed their letter on 06/05/2014, clarifying that the amounts were being paid to the distributor not only for acting as Commission Agent but also due to the fact that they are undertaking various activities like advertising, reporting, training of personnel etc., all amounting to promotion of principal's business. Therefore, Service Tax charged by the....
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....lanation added is as under:- "Explanation-For the purpose of this clause, sales promotion includes services by way of sale of dutiable goods on commission basis." 5. The Learned Advocate appearing on behalf of the Appellant submits that the issue is no more res integra. This Bench in the case of Himadri Speciality Chemical Limited vide Final Order No. 76381/2019 dated 07/08/2019, has held that the assessee is eligible for Cenvat Credit, which has been affirmed by the Hon'ble High Court of Calcutta as reported in 2022 (66) GSTL 264 (Cal.). 6. The Tribunal held that since this clarifies the issue, the same would have retrospective effect. On appeal by the Revenue before the Calcutta High Court, the Hon'ble High Court has held that the Tr....
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....d the submissions made before me. 11. I find that the issue is no more res integra. This Bench vide Final Order No. 76381/2019 dated 7.8.2019 in the case of cited case law of Himadri Speciality Chemical Limited, has held as under"- 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 commiss....
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....h benefit appears to have been the legislature's object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect...." Similar view has also been taken in the case of Simbhaoli Sugar Ltd. v. CCE, Meerut-II 2018 (363) ELT 1172 (Tri-All) wherein it has been held that - "2. Cenvat credit has sought to be denied to the appellant relying on the decision of Hon'ble High Court of Gujarat in the case of Commissioner of Central Excise, Ahmedabad-II v. Cadila Healthcare Ltd. reported in 2013 (30) S.T.R. 3 (Gujarat) wherein it has been held that such commission agents are not engaged in the activity of sales promotion. The said judgment has been examined by this....
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....ed 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 appellants are entitled to avail Cenvat credit on commission paid to the selling agent for selling the goods in terms of Rule 2(l) of the Cenvat Credit Rules, 2004. The aforesaid views have also been taken by this Tribunal in the following cases- * Birla Corporation Ltd. vs. CCE Lucknow 2014 (35) STR 977 (TriDel) * CCE Alwar vs. Orient Refractories Ltd (CESTAT Delhi Final Order no 50494/2019 In view of the above discussions, we agree with the submissions made ....
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.... Tax v. Archean Granite Private Limited [(2020) 117 taxmann.com 977 (Madras)] amendment made to Section 40(a)(ia) of the Finance Act, 2010 inserting proviso therein was held to be retrospective with effect from the assessment year 2005-06 and the Court followed the decision in the case of Commissioner of Income Tax v. Calcutta Export Company [(2018) 93 taxmann.com 51]. Therefore, we find that the approach to the issue in the manner done by the Learned Tribunal cannot be faulted. 13. Since the issue is identical in the present case, relying on these decisions, I allow the Appeal on merits. 14. I also see force in the Appellant's arguments that the Show Cause Notice issued on 11/11/2016 is time barred. The Appellant has been taking the Cenv....