TMI Blog2016 (2) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the appellant also, but the respondent has never raised any objections all through. Earlier to the present audit, the department has conducted the audit on two occasions but the department never raised this issue. Further, with regard to limitation, we are of the considered opinion that the entire demand is barred by limitation as there is no material placed on record by the department to show that the appellant has suppressed the material facts with intent to evade duty. On the other hand, the appellant has placed on record two audit reports conducted by the department, wherein certain other objections were raised, but this issue was never raised which is sought to be raised now by the present show cause notice dated 27.4.2011 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1985 and are chargeable to duty. The appellant also sells their products to customers located outside India. In order to procure orders from the foreign buyers, the appellant has appointed commission agents at various locations outside India under written agreement. These agents promote the sale of the product and procure orders for the appellant and the commission is paid on the FOB value of the goods exported. The appellant further alleged that in terms of the provisions of Rule 4 of the Taxation of Services (Provided from Outside India and Received in India) Rules, 2006, the appellant has registered with the central excise and as receivers of services in India pays service tax on reverse charge basis as required under the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant during the period from April 2006 to June 2009 under the proviso to sub-section (1) of Section 11A of the Central Excise Act read with Rule 14 of the Cenvat Credit Rules, 2004 along with interest and penalty under Section 11AB and 11AC respectively. The appellant submitted detailed reply to the show cause notice denying all the allegations in the show cause notice with the help of decided cases by the Tribunal and the Hon ble High Court. The learned Additional Commissioner, however, vide his order dated 31.8.2012 accepted the submission of the appellant that services rendered by the commission agent based outside India are input services for the appellant but failed to accept the submissions on limitation and availability of cenvat c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vail cenvat credit as there is no requirement under the said notification to follow any particular procedure as provided in the notification which is required to be followed only when an exporter is claiming such exemption by way of refund. He also submitted that the case laws relied upon by the Commissioner (Appeals) are absolutely irrelevant and the case laws cited by the appellant are squarely applicable to the facts of the present case. It is his further submission that the entire demand is time barred and invoking the extended period of limitation by the Revenue is wrong and illegal as there is no suppression and concealment of material facts with intent to evade duty. He also submitted that prior to the present audit, accounts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in relation to the manufacture of final products and (clearance of final products upto the place of removal), and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit relating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal: 7. Before adverting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 2(l) of the Cenvat Credit Rules, 2004 specifically covers advertisement or sale promotion services . The service received by the respondent is of commission agent appointed by them abroad who secure the export orders from them. I am of the, prima facie, view that the service of commission agent is a service of the sale promotion and would be covered by the definition of input service . 8. It is pertinent to mention that in para 15 of the order-in-original, the adjudicating authority has specifically held that the services of commission agent abroad is input services as the commission agent procured the orders for the appellant and thereafter the appellant manufactured the goods. For holding the services of commission agent abroad a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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