New User   Login      
Tax Management India .com TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (8) TMI 956 - CESTAT AHMEDABAD

2015 (8) TMI 956 - CESTAT AHMEDABAD - TMI - Denial of CENVAT Credit - Credit on sales commission - Invocation of extended period of limitation - Held that:- Gujarat High Court in the case of Cadila Healthcare Ltd (2013 (1) TMI 304 - GUJARAT HIGH COURT), after considering the decision of Hon’ble Punjab & Haryana High Court [2011 (7) TMI 980 - 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 sust .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 belief of the admissibility of CENVAT credit on overseas sales commi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

14 - Order No. A/10834/2015 - Dated:- 22-6-2015 - Mr. P.K. Das, Member (Judicial) and Mr. P.M. Saleem, Member (Technical), JJ. For the Petitioner : Shri Prakash Shah, Advocate For the Respondent: Shri K. Sivakumar, Authorised Representative ORDER Per: P.K. Das The Appellants were engaged in the manufacture of excisable goods viz. parts of Cold Rolling Mills and Galvanising Line/Process Line etc, classifiable under Chapter 84 of the Schedule to the Central Excise Tariff Act, 1985. They availed in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f 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 jurisd .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed the statutory records and filed the returns and therefore, there is no suppression of facts with intent to evade payment of tax. He relied upon the decision of the Tribunal in the case of Jayaswal Neco Industries Ltd Vs CCE & ST Raipur by Final Order No.52257-52258/2014, dt.07.05.2014 and the decision of Hon ble Gujarat High Court in the case of Commissioner Vs Dynamic Industries Ltd - 2014 (35) STR 674 (Guj). 4. On the other hand, the learned Authorised Representative on behalf of the Re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to bonafide belief that the Appellant was eligible for credit. He submits that all the decisions have come after the period of dispute. 6. After hearing both the sides and 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 wo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ding 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. So, we are unable to a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nt of duty, the extended period of limitation of 5 years would be invoked. The Adjudicating authority observed that there was no bonafide belief on the part of the Appellant that the Appellant is eligible to take CENVAT Credit. In view of the various decisions of the Tribunal, Boards Circular and the decision of Hon ble Punjab & Haryana High Court, it is clearly evident that there is sufficient material to take up the view that the Appellant was holding a bonafide belief of the admissibility .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 in respect of the following three categories of services i.e. (i) Customs House Agents Services, (ii) Shipping Agents and Container Services and (iii) Services of Overseas Commission, is answered partly in favour of the assessee so far as aforesaid category Nos. (i) and (ii) are concerned. Insofar as category No. (iii) i.e. S .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ad shown availment of Cenvat credit in Part IV and V of ER-1 returns filed by it. The appellant-Department has sought to justify its action by submitting that during the course of audit by the Office of the Accountant General, when a detailed examination of the material was done, it was realised that the respondent-assessee had availed Cenvat credit on the services of all the three categories. The respondent-assessee has rightly pointed out that all the service providers charge the service tax o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 sides and perused the records. On merits, the question as to whether the VAT which was .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version