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2016 (2) TMI 64 - AT - Central ExciseEntitlement to cenvat credit in respect of service tax paid to the commission agents based abroad - can the services rendered by the foreign based commission agent be stated to be input services within the meaning of such expression as defined under Rule 2(l) of the Cenvat Credit Rules, 2004? - Held that:- We find that as per Notification 41/2007-ST dated 6.10.2007 as superseded by Notification 18/2009-ST dated 7.7.2009, the appellant has an option either to avail cenvat credit or to claim refund and the appellant has chosen to claim cenvat credit and this fact has been reflected in the records of the appellant also, but the respondent has never raised any objections all through. Earlier to the present audit, the department has conducted the audit on two occasions but the department never raised this issue. Further, with regard to limitation, we are of the considered opinion that the entire demand is barred by limitation as there is no material placed on record by the department to show that the appellant has suppressed the material facts with intent to evade duty. On the other hand, the appellant has placed on record two audit reports conducted by the department, wherein certain other objections were raised, but this issue was never raised which is sought to be raised now by the present show cause notice dated 27.4.2011 for the period from April 2006 to June 2009 by invoking the extended period of limitation. Further, the appellant has been disclosing the payment of commission to foreign based agent in all their shipping bills and also in their periodical returns submitted to the department. Therefore, keeping in view all the facts and circumstances and the definition of “input services” as well as Notification No.18/2009-ST we are of the considered opinion that the appellant is entitled to avail cenvat credit in respect of commission paid to the commission agent based abroad and the impugned order is liable to be set aside and we allow the appeal by setting aside the impugned order with consequential relief, if any. - Decided in favour of assessee
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