TMI Blog2024 (1) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... he demand for extended period is sustainable or the same was rightly set aside by the learned commissioner? - HELD THAT:- The period involved in the present case is April-2010 to March-2014. During this period, there was no dispute about admissibility of the Cenvat Credit on Sales Commission to the assessee. The Revenue has heavily relied upon the decision of Hon ble Supreme Court in the case of M/S. MARUTI SUZUKI LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [ 2009 (8) TMI 14 - SUPREME COURT] which was on general principle of Cenvat Credit Rules. Whereas, the specific issue of availment of Cenvat Credit on Sales Commission has been decided in various judgments. The judgments dealing with the specific issue will prevail over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that the appellant cannot entertained any bona fide belief in availing the wrong credit on Sales Commission, as the issue was decided way back in the case of Maruti Suzuki Ltd. 2009 (240) ELT 641 (S.C.) that the service, which does not have nexus with the activity of manufacturing the credit cannot be allowed. Therefore, in view of the Supreme Court judgment, the appellant was not eligible for Cenvat Credit on Sales Commission. This was further endorsed by the Hon ble Gujarat High court in the case of Cadila Helth Care Ltd. reported at 2013 (30) STR 3. The appellant have not disclosed the fact of availment of Cenvat credit on Sales commission. Therefore, there is a clear suppression of fact on their part. Accordingly, the demand of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the merit of the case, whether the assessee is eligible to avail the Cenvat credit on Sales Commission the issue is pending before the Hon ble jurisdictional High court of Gujarat in the case of commissioner Vs. Essar Steel Ltd 2016 (45) STR J 218 Gujarat. Therefore, in our considered view, the merit of the case cannot be taken up. However, in the present appeal, the limited issue to be decided is that whether the demand for extended period is sustainable or the same was rightly set aside by the learned commissioner. 4.1 We find that the period involved in the present case is April-2010 to March-2014. During this period, there was no dispute about admissibility of the Cenvat Credit on Sales Commission to the assessee in the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission agents who were causing sale of the exported goods, on payment of commission at an agreed percentage of business generated by them. As the commission agents were non-residents from outside India and had no office in India, the respondent being the receiver of their services was liable to pay service tax on the value of overseas commission paid by it to them for procuring business auxiliary services under Rule 2(1)(d)(iv) of the Service Tax Rules, 1994 (for short the Rules ). The respondent was, thus, required to obtain service tax registration, pay service tax and file ST-3 returns under Rule 7 of the Rules. A notice was issued to the respondent to show cause why recovery of service tax of Rs. 8,205/- for the period from 4/04 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove order, vide order dated 27-3-2008. 6. The appellant-department preferred appeal before the Tribunal. The Tribunal upheld the order of the Commissioner (Appeals) by its order dated 20-7-2010. 7. Hence, this appeal by the appellant-Department. 8. The Tribunal while affirming the order of Commissioner (Appeals) and adjudicating the issue in favour of the respondent had come to the conclusion that the activities in respect of which cenvat had been filed, were pre-removal activities and the same could not be held to be post-removal. It was further observed that canvassing and procuring orders were in relation to sales promotion and would fall under sales promotion activities. These activities were, thus, included in the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid service tax using TR-6 challans and taken credit treating the said documents as documents covered by Rule 9(1) of the Cenvat Credit Rules, 2004. There is nothing irregular about it. 9. In the light of the aforesaid finding, learned counsel for the revenue was unable to justify that the claim of cenvat credit by the assessee was erroneous in any manner. No perversity or illegality could be shown by the learned counsel in the order passed by the Tribunal which may call for any interference by this Court. 10. In view of the above, this Court is of the opinion that in this appeal, no substantial question of law arises for consideration by this Court. The appeal is accordingly dismissed. 4.3 The similar issue was also conside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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