TMI Blog2015 (8) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... nal product upto the place of removal. Moreover, the activity of sales promotion is specifically allowed and on many occasions, the remuneration for same is linked to actual sale. Reading the provision harmoniously, it is clarified that the credit is admissible on the services of sale of dutiable goods on commission basis. The Hon’ble Gujarat High Court in the case of Cadila Healthcare Ltd (supra) differed with the view of Hon’ble Punjab & Haryana High Court in the case of Ambika Overseas (supra). It is also noted that the Tribunal in various decisions during the material period held that the CENVAT Credit is available on overseas sales commission. - there is sufficient material to take up the view that the Appellant was holding a bonafide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant fairly submits that the Hon ble Punjab Haryana High Court in the case of CCE Ludhiana Vs Ambika Overseas 2012 (25) STR 348 (P H) held in favour of the Appellant that the services provided by the overseas commission agent for canvassing and procuring of order are within the ambit of definition of input service under Rule 2(l) of CENVAT Credit Rules, 2004. But, the Hon ble Gujarat High Court in the case of CCE Ahmedabad II Vs Cadila Healthcare Ltd 2013 (30) STR 3 (Guj.) held against the Assessee. He submits that the Appellant Company is situated within the jurisdiction of Hon ble Bombay High Court and therefore, the decision of Hon ble Punjab Haryana High Court should be followed. 3. He further submits that the entire de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on perusal of the records, we agree with the submission of the learned Authorised Representative for the Revenue on merit that the Hon ble Gujarat High Court in the case of Cadila Healthcare Ltd (supra), after considering the decision of Hon ble Punjab Haryana High Court, held that CENVAT Credit on overseas commission would not be admissible and hence, the denial of CENVAT Credit on merit is sustainable. 7. Regarding the denial of CENVAT Credit on limitation, we find that vide Boards Circular No.943/4/2011-CX, dt.29.04.2011, it was clarified that the definition of input service allows all credit on services used for clearance of final product upto the place of removal. Moreover, the activity of sales promotion is specifically allowed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Appellant was holding a bonafide belief of the admissibility of CENVAT credit on overseas sales commission. We have also noticed that the Appellant has taken the credit and duly recorded in the CENVAT account. Thus, there is no material available to invoke the extended period of limitation. Accordingly, the demand of CENVAT Credit alongwith interest and penalty for the extended period cannot be sustained. 8. In the case of CCE Vs Dynamic Industries Ltd, 2014 (35) STR 674 (Guj.), on the identical situation, the Hon'ble Gujarat High Court held that the extended period of limitation would not be invoked. The relevant portion of the said decision is reproduced below:- 12. Accordingly, the substantial question of law raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es as far as the first two services are concerned. However, insofar as the third service where this Court has held in favour of the Revenue and against the respondent-assessee, we are of the opinion that the extended period of limitation would not be available to the Revenue in absence of any material to indicate suppression on the part of the respondent-assessee. It is not in dispute that there was no suppression nor any misrepresentation in respect of Cenvat credit availed by the respondent-assessee in respect of these services. 9. The Tribunal in the case of Jayswal Neco Industries Ltd Vs C.C.E. S.T., Raipur vide Order No.52257-52258/2014, dt.07.05.2014, held as under:- 6. We have considered the submissions from both the side ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant company, the last other judgment being in the case of Super Synotex (India) Ltd. (supra) which was subsequently reversed by the Apex Court vide judgment reported in 2014 (301)ELT 273 (SC). In view of the Boards Circular and the judgments of the Tribunal, which were in favour of the appellant, it can be said that the appellant had acted under bonafide belief that VAT amount collected by them from the customers and retained was not includible in the assessable value and hence, in these circumstances, in view of the Apex Court judgment in the case of CCE, Vs. Continental Foundation Joint Venture (supra), the longer limitation period would not be available and as such, the duty demand would have to be held as time barred. 10. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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