TMI Blog2013 (12) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... is an “input service” as defined under Rule 2 (k) of the Cenvat Credit Rules, 2004 because the service is in relation to “sales promotion” which is specifically included in the inclusive part of the definition. That being the case, the appellants were eligible to take credit of the service tax so payable if the appellants were to pay excise duty on any of the export goods. On textile products a voluntary scheme for payment of excise duty was in force. So the appellants could pay duty, take credit and utilize it either for local clearance or on any export consignment and get rebate. It is also seen that from 01-04-08, the government exempted such taxes subject to certain conditions by issuing notification 17/2008-ST. Part of the demand is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have become infructuous and they are disposed of accordingly. 3. Appeal ST/14/10 is filed against OIA No.158/09 (SLM) ST dt. 13.10.09 and rest of the four appeals are filed against a common Order-in-Appeal No. 08 to 11/2010-(SLM) (ST) dt. 29.1.2010 passed by the same Commissioner of Central Excise (Appeals), Salem. Though appeals are filed by different parties, the issue involved in all the appeals is the same. 4. The appellants are engaged in manufacture of different types of textile yarn. A part of the goods produced were exported by them. For getting export orders, they were utilizing services of persons located abroad and the appellants were paying commission to such agents. Appellants did not pay any service tax for such services r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- P2:4,24,474/- Penalty u/s 76 also imposed. 5. Aggrieved by the orders, the appellants have filed these appeals. 6. The Ld. Advocate fairly submits that she has no serious objection on the demand of tax as they are eligible to avail cenvat credit and there is no suppression of fact with intent to evade payment of tax. Without prejudice, she further submits that their foreign agents did not deal with goods at all and they were only canvassing orders. So, according to her, these agents did not fit into the description of commission agents as defined in section 65 (19) of Finance Act, 1994. 7. Secondly, she argued that the entire activity of canvassing of orders was done outside India and hence cannot be taxed in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods belonging to the appellants, the service is taxable as Business Auxiliary Service . The definition at 65(19) includes services of a commission agent . But when the services fall under clause (i) there is no need to examine whether the agent abroad was doing all the activities of a Commission Agent as is commonly understood. He relies on the decision of the Tribunal in Nahar Spinning Mills Vs. CCE - 2009 (13) STR 255 (Tri-Del). 10. Further, he points out that Business Auxiliary Service is covered under clause (iii) of Rule 3 of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006. In the case of such services, the services are to be considered as imported into India if the provider of service is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants were to pay excise duty on any of the export goods. Though there were conflicting decisions in this issue by the Hon. Gujarat High Court in the case of CCE Vs Cadilla Health Care - 2013 (30) STR 3 (Guj.) and by Hon. Punjab and Haryana High Court in CCE Vs Ambika Overseas, now it stands accepted by CBEC in their circular 943/4/2011-CX dt. 29.04.11 at item 5 that cenvat credit can be taken on such services. On textile products a voluntary scheme for payment of excise duty was in force. So the appellants could pay duty, take credit and utilize it either for local clearance or on any export consignment and get rebate. It is also seen that from 01-04-08, the government exempted such taxes subject to certain conditions by issuing notif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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