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2015 (4) TMI 1033 - CESTAT MUMBAI

2015 (4) TMI 1033 - CESTAT MUMBAI - TMI - Denial of refund claim - Service tax amount paid on the commission to the agents - refund of unutilised credit of duty paid on input and input services - adjudicating authority rejected the refund claim on the ground that the services were not used in the manufacture of the final products which were exported - Held that:- issue is no more res integra. Honourable High Court of Gujarat in the case of Commissioner of Central Excise, Ahmedabad - II v. CEDILE .....

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is liable to be set aside - Decided in favour of Revenue. - Appeal No. E/08/10- Mum - Dated:- 28-4-2015 - Mr. M.V. Ravindran, Member (Judicial) For the Petitioner : Shri Rakesh Goyal, Addl.Comm (AR) For the Respondent : Shri Dayananda K., CA ORDER This appeal is directed against order in appeal number AKP/63/NSK/2009 dated 30/09/2009. 2. Revenue is in appeal against the impugned order which has set aside the order in original vide which refund of the service tax amount paid on the commission to .....

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crutinised and on scrutiny it was noticed that the entire amount of the refund claim was of the service tax paid on the services rendered by a commission agent who was rendering the services to the appellant for the sale of goods abroad. The adjudicating authority rejected the refund claim on the ground that the services were not used in the manufacture of the final products which were exported. On an appeal, the first appellate authority accepted the arguments made by the appellant assessee bef .....

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s promotion, it is apparent that in case of sales promotion a large population of consumers is targeted. Such activities relate to promotion of sales in general to the consumers at large and are more in the nature of the activities referred to in the preceding paragraph. Commission agent has been defined under the explanation to business auxiliary service and insofar as the same is relevant for the present purpose means any person who acts on behalf of another person and causes sale or purchase .....

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ies as envisaged under the said expression. The term input service as defined in the rules means any service used by a provider of taxable service for providing an output service or used by the manufacturer whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal and includes services used in relation to various activities of the description provided therein including advertisement or sales promotion. Thus, t .....

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arance of final products from the place of removal. The includes portion of the definition refers to advertisement or sales promotion. It was in this background that this court has examined whether the services of foreign agent availed by the assessee can be stated to services used as sales promotion. In the absence of any material on record, as noted above to indicate that such commission agents were involved in the activity of sales promotion as explained in the earlier portion of the judgemen .....

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n any event the service rendered by a commission agent is a service received in relation to the assessees activity relating to business, it may be noted that the includes part of the definition of input service includes activities relating to the business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security. The words activities relating to business are followed by the words such as. Th .....

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ther than the activities mentioned in the sub-rule. However, that does not mean that every activity related to the business of the assessee would fall within the inclusive part of the definition. For an activity related to the business, it has to be an activity which is analogous to the activities mentioned after the words such as. What follows the words such as is accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share r .....

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