TMI Blog2017 (12) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... he services of C&F agents are concerned and when their services are accepted as input service prior to 01/04/2008, the same services will continue to be input services even after 01/04/2008 - CENVAT credit on input services in respect of which tax paid on C&F agent services even after 01/04/2008 allowed - appeal allowed - decided in favor of appellant. - E/2739-2740/2011, E/2734/2011 - 22819 to 22821/2017 - Dated:- 16-11-2017 - Shri S.S Garg, Judicial Member Shri Pakshi Rajan, Asst Commissioner(AR) - For the Department Shri B. Raghavendra, Advocate - For the Assessee ORDER Per: S.S GARG Assessee has filed two appeals against the common impugned order dt. 09/05/2011 whereby the Commissioner(Appeals) has held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on AMC paid on computerised tinting machines and storage racks. Department entertained a view that the assessee has wrongly taken the CENVAT credit and therefore show-cause notice dt. 25/02/2009 was issued to the appellant to deny the service tax paid on commission and service tax paid on AMC paid for tinting machines and credit availed on storage racks. After following the due process, the Jt. Commissioner vide Order-in-Original dt. 15/06/2009 confirmed the demand of CENVAT credit amounting to ₹ 5,72,688/- and also imposed equal penalty. Aggrieved by the said order, assessee filed appeal the Commissioner(Appeals When the proceedings were going on, another show-cause notice dt. 14/02/2009 proposing to deny the credit of ₹ 5,69,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hom the assessee sells their final products is coming within the definition of input services as per Rule 2(I)(ii) of CCR and the premises of consignment agent is a place of removal. He further submitted that having given such a categorical finding, it is surprising to note that the learned Commissioner has restricted the credit only up to the period 01/04/2008 on the ground that after amendment effective from 01/04/2008, the assessee is not eligible for credit. He further submitted that the learned Commissioner(Appeals) has wrongly relied upon the ratio of the decision reported in 2009(13) STR 160 to come to a conclusion that the activity undertaken by consignment agent cannot be treated as sales promotion activity and hence the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods by road and this has been omitted to be taken in to account. He further submitted that the entire demands are barred by limitation because there was no evidence on record to show that the assessee has taken the credit on account of fraud, willful misstatement, collusion or suppression of facts. He further submitted that the Commissioner(Appeals) has set aside the penalty under Section 11AC of the Act. Further strangely he has confirmed the demand of reversal of credit and this demand should have also been set aside on limitation since there is a categorical finding that there is no evidence to prove that the assessee has suppressed the facts with a wilful intention to evade duty. Further in support of his submission, he relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the parties, I find that the only point for consideration in these appeals is whether the appellant is eligible to avail the credit of services tax paid by their consignment agent viz. clearance and forwarding agent. Further I find that both the authorities have allowed the credit of service tax up to the period 01/04/2008 and strangely rejected the credit after the period 01/04/2008 only on the ground that the services rendered by the consignment agents are services which are required after removal of goods from the factory gate and therefore vide the amendment to Rule 2(l) effective from 01/04/2008, the assessee is not entitled for availment of credit which finding is not legally correct. I also find that the Commissioner(Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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