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Cenvat credit of service tax paid on commission agents service

Cenvat Credit - By: - Suriyanarayanan Iyer - Dated:- 19-4-2016 - The excise commissionerates in Gujarat have been disallowing the cenvat credit of service tax paid on services rendered by commission agents for quite some time through adjudication proceedings. The interpretation in the decision of Honourable Gujarat High Court in Cadila Healthcare Ltd - 2013 (1) TMI 304 - GUJARAT HIGH COURT holding that service of commission agents does not fall under the expression sales promotion occurring in t .....

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e of this clause, sales promotion includes services by way of sale of dutiable goods on commission basis. The notification dated 03.02.2016 specifically states that the said notification comes into force from 03.02.2016. However, it is to be stated that the aforesaid explanation is declaratory and therefore retrospective in character. It is relevant to mention here that in COMMISSIONER OF CENTRAL EXCISE, LUDHIANA Versus AMBIKA OVERSEAS- 2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT , the Pu .....

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serting an explanation thereunder stating that the expression sales promotion includes services by way of sale of dutiable goods on commission basis. The aforesaid amendment by way of inserting an explanation is nothing but a clarificatory and retrospective legislation. The following judicial precedents support the view for giving retrospective effect to the amendment dated 03.02.2016. 6.1) In the case reported as GREATSHIP (INDIA) LTD. Versus COMMISSIONER OF SERVICE TAX, MUMBAI-I- 2015 (4) TMI .....

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Act. 20. In the case of Poddar Cement Ltd. & Ors. (cited supra), the Apex Court found that there was divergence of opinions with regard to the interpretation of definition of owner of house property as provided in Section 27. Some of the High Courts had held that owner is only a person who is owner by virtue of registered conveyance, whereas some of the High Courts held that definition of owner includes any person who has a right to enjoy the said property and income derived therefrom. Takin .....

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eclaratory statutes in the following manner [Statute Law, 7th Edn., p. 58] :- For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariabl .....

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read with the Public Notice 10/1993 of the Customs House which is prior to the Notification, clearly brings out the fact that the insertion of para 3C was clarificatory in order to make explicit, the intention already implicit in the earlier notification that the exemption shall apply to goods imported for the development of software for exports for providing consultancy services on site abroad. The introduction of a deemed export concept to cover consultancy services on site abroad has been ap .....

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were not then available. However, having regard to the nature of this material, being documents revealing the departmental authorities own understanding of the scope of exemption under the notification, there will be no infirmity in taking these into consideration at this stage especially when it is found that the amending notification, mentioned above, is in the nature of clarificatory notification. The intention behind the deemed concept introduced is apparently to the extent only of making t .....

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e-Tax Act, 1961 with effect from 01.04.1984 came up for consideration in Allied Motors (P) Ltd. v. Commissioner of Income-tax, 1997 (3) TMI 9 - SUPREME Court and it was given retrospective effect from the date of inception of the section. The reason given was that the proviso was added to remedy unintended consequences and supply an obvious omission so that the section may be given a reasonable interpretation and that in fact the amendment to insert the proviso would not serve its object unless .....

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