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2021 (10) TMI 810 - AT - Central ExciseRefund claim against reversal of CENVAT Credit - input services or not - sales commission - refund rejected on the ground that sales commission is not input service and also on the ground that the appellant have admittedly reversed the amount without under protest - HELD THAT:- It is found that the reversal was made on the objection of the audit party. Though the reversal was not made under protest but the appellant has right to claim refund within one year as mandated under section 11B of Central Excise Act,1944., therefore only on the ground that the appellant has not filed under protest letter while reversing the credit refund cannot be rejected on this ground. As regard the merit that whether the sales commission is admissible input service or otherwise the issue is subjudice before the Hon’ble High Court of Gujarat in the case of Essar steel India Ltd. [2016 (4) TMI 232 - CESTAT AHMEDABAD] and Cadila Health Care Ltd. [2013 (1) TMI 304 - GUJARAT HIGH COURT]. Therefore, at this stage the merit cannot be decided. Appeal remanded to the Adjudicating Authority for passing a fresh order after the legal issue is settled on the admissibility of the Cenvat Credit on sales commission by the Hon’ble Apex Court in the case of M/s. Cadila HealthCare Ltd. and also by the Hon’ble High Court in the case of Essar Steel India Ltd. - appeal allowed by way of remand.
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