Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (2) TMI 64 - CESTAT MUMBAI

2016 (2) TMI 64 - CESTAT MUMBAI - 2016 (41) S.T.R. 904 (Tri. - Mumbai) - Entitlement to cenvat credit in respect of service tax paid to the commission agents based abroad - can the services rendered by the foreign based commission agent be stated to be input services within the meaning of such expression as defined under Rule 2(l) of the Cenvat Credit Rules, 2004? - Held that:- We find that as per Notification 41/2007-ST dated 6.10.2007 as superseded by Notification 18/2009-ST dated 7.7.2009, th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 the period from April 2006 to June 2009 by invoking the extended period of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he impugned order is liable to be set aside and we allow the appeal by setting aside the impugned order with consequential relief, if any. - Decided in favour of assessee - APPEAL No. E/86768/13-Mum - Final Order No. A/85241/2016-WZB/EB - Dated:- 5-1-2016 - MR. P.S. PRUTHI, MEMBER (TECHNICAL) AND MR. S.S. GARG, MEMBER (JUDICIAL) For the Petitioner : Shri C. Subba Reddy, Advocate For the Respondent : Shri H.M. Dixit, Assistant Commissioner (AR) ORDER PER: S.S. GARG This appeal is directed against .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ide 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

availing credit of such service tax on the amount paid to the commission agent located outside India. The appellant further alleged that by Notification 41/2007-ST dated 6.10.2007, exemption is provided to the services received by the exporter from certain service providers, which are specifically specified in the said notification. This notification was further amended by Notification No.17/2008-ST dated 1.4.2008 and by this notification, exemption is specifically provided to services provided .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ived a show cause notice wherein the department sought to recover cenvat credit amounting to ₹ 34,69,947/- allegedly wrongly availed by the appellant 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ppellant. Thereafter the appellant filed appeal before the Commissioner (Appeals) who vide his order dated 20.2.2013 upheld the order-in-original. Hence the present appeal before this Tribunal. 3. The learned counsel for the appellant submitted that the issue whether the services of the commission agents located abroad are input services for the appellant has already been decided in favour of the appellant by the adjudicating authority vide para 15 of the order-in-original and the Commissioner ( .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

6.10.2007 as superseded by Notification 18/2009-ST dated 7.7.2009, the appellant is entitled to avail cenvat credit on the service tax paid on the services of commission agent located abroad. The learned counsel took us through these notifications to canvass that it is optional for the exporter to either claim exemption by way of refund or avail cenvat credit and the appellant has chosen to avail cenvat credit as there is no requirement under the said notification to follow any particular proced .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s no suppression and concealment of material facts with intent to evade duty. He also submitted that prior to the present audit, accounts of the appellant were audited on earlier occasions and no issue regarding the same has been raised during the course of earlier audit in spite of the fact that several objections on availment of cenvat credit by the appellant were raised. All the transactions with the commission agent abroad have been disclosed in the records from the very beginning and also 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

nt is entitled to cenvat credit in respect of service tax paid to the commission agents based abroad. In other words, can the services rendered by the foreign based commission agent be stated to be input services within the meaning of such expression as defined under Rule 2(l) of the Cenvat Credit Rules, 2004? For the purpose of appreciating the definition of input services as prescribed by Rule 2(l) is reproduced herein below:- 2(l) Input service means any service - (i) used by a provider of ta .....

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 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 to the merits of the issue, reference may be made to various decisions rendered in the context of expression input services as defined under Ru .....

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. Further, the definition of the inputs services includes services used in relation to sales promotion , and these activities can rightly be described as sales promotion activities. Sales promotion activities undertaken at a given point of time also aims at sales of goods which are to be manufactured and cleared in future. Any advertisement given has a long term impact and cannot be treated as post clearance activities and therefore, sales promotion has been specifically included in the defini .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sion 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 th .....

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