TMI Blog2018 (7) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... -2018 - Hon ble Shri Ajay Sharma, Member (Judicial) Shri K. Poddar, Authorized Representative (DR) for the appellant Ms. Sukriti Das, Advocate for the respondent ORDER Per. Ajay Sharma The instant appeal has been filed from the order-in-appeal No. 70 (SM) CE/JPR/2018 dated 21/02/2018. 2. The respondent/assessee are engaged in the manufacture of Ball Bearing falling under Chapter 84 of the Schedule to the Central Excise Tariff Act, 1985. A show cause notice dated 17/12/2005 was issued to the respondent alleging thereunder that they have wrongly availed Cenvat credit amounting to ₹ 15,74,528/- on the ineligible input service rendered by the sales agents/commission agents during the period December 2014 to October 2015. They were called upon to show cause and explain as to why :- (i) Cenvat credit amounting to ₹ 15,74,528/- (S. Tax 15,55,681/- + Edu. Cess ₹ 12,565/- + SHE Cess ₹ 6,282/-) wrongly availed by them should not be recovered from them under Rule 14 of the Cenvat Credit Rules, 2004 readwith Section 11A (1) of the Central Excise Act, 1944 ; (ii) Interest on wrongly availed Cenvat credit should not be recovered from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut in the definition of input services under Rule 2 (l) vide Notification No. 2/2016-CE (ST) dated 03/02/2016 which are necessary for the purposes of determining of the issue involved in the instant appeal are extracted as under :- Rule 2 (l) input service means any service, - (i) used by a provider of [output service] for providing an output service; or (ii) used by a manufacturer, whether directly or indirectly, in 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 modernisation, 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, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal ; XXX XXX XXX Cenvat Credit Rules, 2004 - Second Amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e retrospectively. The relevant paragraph of the said decision has been extracted as under :- 20. But, the Hon ble Gujarat High Court in the case of Cadila Healthcare Ltd. (supra) was unable to concur with the contrary view taken by the Hon ble Punjab Haryana High Court in the case of Commissioner of Central Excise, Ludhiana v. Ambika Overseas (supra). The Hon ble Gujarat High Court held that this issue is concerned, the question is answered in favour of the Revenue and against the assessee. In this background, legislature explained the meaning of the sales promotion by inserting Explanation in Rule 2(l) of Rules, 2004 and declared that sales promotion includes services by way of sale of dutiable goods on commission basis. In other way, Explanation to Rule 2(l) of Rules says in clear terms that there is no bar on availment of the Cenvat credit on sales promotion service by way of sale of dutiable goods on commission basis. Further, by inserting the Explanation in the Rule 2(l), it has confirmed the Board Circular and resolved the different views of the High Courts. Taking into circumstances under which the Explanation was inserted in Rule 2(l) of Rules, 2004 and consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concur with the contrary view taken by the Hon ble Punjab Haryana High Court in the case of Commissioner of Central Excise, Ludhiana v. Ambika Overseas (supra). The Hon ble Gujarat High Court held that this issue is concerned, the question is answered in favour of the Revenue and against the assessee. In this background, legislature explained the meaning of the sales promotion by inserting Explanation in Rule 2(l) of Rules, 2004 and declared that sales promotion includes services by way of sale of dutiable goods on commission basis. In other way, Explanation to Rule 2(l) of Rules says in clear terms that there is no bar on availment of the Cenvat credit on sales promotion service by way of sale of dutiable goods on commission basis. Further, by inserting the Explanation in the Rule 2(l), it has confirmed the Board Circular and resolved the different views of the High Courts. Taking into circumstances under which the Explanation was inserted in Rule 2(l) of Rules, 2004 and consequence of the Explanation to extend the benefit to the assessee as per Board Circular, we hold that the Explanation inserted in Rule 2(l) of Rules, 2004 by Notification No. 2/2016-CX (N.T.) (supra) should b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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