9911796707
TMI Blog2020 (11) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 E/20907/2017 E/20909/2017 Period Involved Dec. 2006 to April 2010 April 2008 to April 2010 May, 2010 to July, 2011 August, 2011 to March 2012 April, 2012 to Dec. 2012 Date of Issuance of Show Cause Notice 07.02.2011 25.10.2011 11.07.2012 12.02.2013 Cenvat credit demand Rs. 1,35,15,241/- Rs. 2,98,262/- Rs. 56,49,735/- Rs. 35,85,570/- Rs. 40,46,760/- Penalty Imposed Rs. 1,35,15,241/- Rs. 2,98,262/- Rs. 56,49,735/- - OIO No. & date 31/2011 dated 20.12.2011 4/2012 dated 30.01.2012 41 & 42/2020 (R) dated 06.11.2013 OIA Nos. & date 189-190/2017 dated 03.04.2017 2. For the sake of convenience, the facts of appeal No. E/663/2012 are taken. 2.1 Appellants are engaged in the manufacture of Pistons and rings falling under Chapter 84 of the Central Excise Tariff Act, 1985. Appellant and their sister concern M/s. Federal Mogul Goetze India Limited (hereinafter referred to as FMGIL) are functioning within the common premises and with common human resources at Yelahanka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ENVAT Credit Rules, 2004 explicitly includes the activity of 'sales promotion'. Further, the explanation of Rule 2(l) of CENVAT Credit Rules, 2004 inserted by Notification No.2/2016-CE (NT) dated 3.2.2016 holding that sales promotion includes services by way of sale of dutiable goods on commission basis. She further submitted that this amendment is declaratory in nature and hence is effected retrospectively. For this submission, she relied upon the following decisions. * Essar Steels India Ltd. vs. CCE & ST, Surat - 2016 (335) E.L.T. 660 (Tri. - Ahmd.) * Stanley Seating vs. CCE, Bangalore-III - 2017 (3) G.S.T.L. 137 (Tri. - Bang.) * Simboli Sugar Ltd. vs. CCE, Meerut - 2018 (363) E.L.T. 1172 (Tri. - All.) * Beloorbayir Biotech Limited vs. CCT, Bangalore - 2018-VIL-370- CESTAT-BLR-ST 4.1 It is her further submissions that relying upon these cited decisions supra, this Tribunal in the appellant's own case vide Final Order No.20201 - 20205/2019 dated 25.2.2019 has allowed credit on sales commission covering for the period January 2013 to February 2016. She also submitted that Board vide Circular No.96/85/2015-CX-I dated 7.12.2015 has also clarified that the decision in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not suppressed any facts from the department, much less acted with an intent to evade payment of duty and hence, longer period of limitation in terms of Section 11A cannot be invoked in the present case because the appellants have been regularly filing ER-1 returns disclosing the availment of credit and it is not the case of the department that the appellant has not disclosed the credit availment in their books of accounts or in their returns. Further, the fact of availment of credit of service tax paid on the sales commission paid to FMGIL was known to the department during the CERA audit conducted for the period January 2008 to April 2010. She also submitted that it is a settled law that when the demand is based on audit objection, the extended period is not invokable and also that suppression cannot be alleged when the matter involves interpretation of legal provisions. For this submission, she relied upon the following decisions: * CCE & ST, Tirupathi vs. Sri Sai Sindu Industries - 2017 (49) STR 84 (Tri. -Hyd.) * Commissioner vs. Dynamic Industries Ltd. - 2014 (307) ETL 15 (Guj.) She also submitted that extended period of limitation cannot be invoked for the period May 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s received in relation to duty paid on goods beyond the place of removal and hence, credit is not admissible. 6. After considering the submissions of both the parties and perusal of the material on record, we find that the only issue involved in the present appeals is viz., denial of CENVAT credit availed on sales commission paid to sister concern M/s. FMGIL for promoting sales and denial of CENVAT credit on service tax paid on outward transportation from factory to buyer's premises during the period from April 2008 to April 2010. Before, we proceed to decide the question involved, it is pertinent to quote the relevant provisions of CENVAT Credit Rules, 2004 pertaining to input services. The definition of input service as contained in Rule 2(l) is reproduced herein below: 2(l) "input service" means any service,- (i) used by a provider of taxable service for providing an output service; or (ii) used by the 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 setting up, modernization, renovation or repairs of a factory, premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case. This issue is no more res integra and has been settled in favour of the assessee in various decisions cited supra wherein it has been consistently held that sales commission fall under definition of 'input service'. By following the ratio of the above said decisions, we hold that denial of CENVAT Credit on sales commission is not sustainable in law. 7. Coming to the denial of CENVAT credit on outward transportation from factory to the customers' premises, learned counsel for the appellant admitted that on merit, the decision of the apex court in the case of CCE vs. Ultra Tech Cement Ltd.: 2018 (9) GSTL 337 (SC) is against the appellant and therefore, she did not argue on merits but submitted that substantial demand is beyond limitation. She further submitted that the department has invoked the extended period of limitation whereas during the relevant period, the Larger Bench of this Tribunal in the case of ABB Ltd. was favour of the appellant and the appellant had a bonafide belief that they are entitled to credit on freight charges paid to the transporter as activity relating to business. She further submitted that out of CENVAT credit of Rs. 2,98,262/-, credit of Rs. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
