TMI Blog2019 (10) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... promotion. Extended period of limitation - HELD THAT:- The consistent judicial findings are available including the decisions in M/S BEDMUTHA INDUSTRIES LTD. VERSUS CCE ST, NASHIK [ 2019 (2) TMI 408 - CESTAT MUMBAI] , M/S ROSA SUGAR WORKS VERSUS CCE. ST. -LUCKNOW [ 2015 (5) TMI 381 - CESTAT NEW DELHI] and M/S. BIRLA CORPORATION LTD. VERSUS CCE, LUCKNOW [ 2014 (6) TMI 385 - CESTAT NEW DELHI] , to the effect that audit report cannot form the basis for invocation of extended period. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 88019 of 2018 - FINAL ORDER NO. A/86843/2019 - Dated:- 18-10-2019 - DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri T.C. Nair, Advocate for the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... care Ltd. [2013 (30) STR 3 (Guj)], Learned Commissioner (Appeals) had confirmed the adjudication order holding that appellant was pure commission Agent and not involved in any sales promotion activities despite the fact that it had undertaken sales promotion activities like propagation of products, distribution of free samples, follow-up with the customers as per the terms of the contract vide Exhibit-B and the demand that covered extended period in the absence of any suppression of fact to evade payment of tax was not in conformity to the law. Further, he submitted that on the basis of audit objection alone penalty cannot be imposed when terms of agreement entered into for carrying of the activities clearly stipulated that other party is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basing on the judgement of Cadila Healthcare, cited Supra, the demand has been confirmed but it is observed that the Learned Commissioner (Appeals) had placed its reliance on Para 5.2 (viii) and (ix) of the said judgement and borrowed meaning of sales promotion from different internet sites while Para (vii) of the Cadila s judgement explains the definition of sales promotion and its meaning. It is obtained by Hon ble High Court from Oxford Dictionary of business and advance law which includes a free sample campaign also, baring analogy from the case laws reported in 232 ITR 869 in the case of the Commissioner of Income Tax v. Mohd. Ishaque Gulam, in which a Division Bench of Madhya Pradesh High Court drew a distinction between the expe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , special offers, and similar activities. The advanced Law Lexicon by P. Ramanatha Aiyar, third edition, describes the term sales promotion as use of incentives to get people to buy a product or a sales drive. In the case of Commissioner of Income-tax v. Mohd. Ishaque Gulam, 232 ITR 869, a Division Bench of the Madhya Pradesh high Court drew a distinction between the expenditure made for sales promotion and commission paid to agents. It was held that commission paid to the agents cannot be termed as expenditure on sales promotion. 6. Therefore, precisely stated sales promotion relates to activities that stimulated sales achieved through contacts, advertisements, discounts, exhibition or trade show, commission, give away, merc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore this Tribunal, though cannot be taken as a piece of evidence in view of stipulation content in Rule 22 of CESTAT Procedure Rules, indicates that the payment was being made as commission charges for order procurement, sales promotion activities and sales servicing and they have documents in their possession to substantiate the same, contrary to the findings of the lower authority concerning non availability/non Production of documents This being the facts and evidence on records and when CBSE Circular 943/4/2010-CX, though was ignored by the Commissioner as contrary to the Rule, clearly states that such credits are admissible, I am of the considered view that appellant had availed eligible credits on input service on service tax paid t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
