TMI Blog2009 (7) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the sales commission, which has been paid by the appellant to the commission agent, is only in respect of the sales made through the commission agents - the impugned order to the extent that it denies the credit of service tax paid on the input services of sales agent commission is unsustainable and we set aside the same - penalty under the provisions of rule 15 of Cenvat Credit Rules set aside. - ST/349 OF 2008 - 872 OF 2009 - Dated:- 2-7-2009 - T.K. JAYARAMAN, TECHNICAL MEMBER and M.V. RAVINDRAN, JUDICIAL MEMBER G. Prabhakara Sastry for the Appellant. Smt. Sudha Koka for the Respondent. ORDER M.V. Ravindran, Judicial Member - This appeal is directed against the Order-in-Original No. 04/2008, dated 14-3-2008. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. They also raised various legal contentions. The learned Adjudicating Authority, after considering the written and oral submissions, vide impugned order, confirmed the demand and also imposed penalty of Rs. 2,000 besides directing them to pay interest. The appellant is aggrieved by such an order and is before us. 3. The learned Counsel appearing on behalf of the appellant would submit that the demand of duty is incorrect inasmuch as the 'Input services' would include any services used by the provider of taxable service for providing an output service or used by the manufacturer, either directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal. It is his sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be considered as used directly or indirectly in the manufacture of the final products. She reiterates the entire findings of the Adjudicating Authority. 5. We have considered the submissions made by both sides and perused the records. There are two issues which require our consideration. They are as follows:- "(1) Whether demanding of excess availed Cenvat Credit of Rs. 5,41,304 being the credit of service tax taken twice, and demand of irregular availment of Cenvat Credit of Rs. 616,123 being the credit of service tax paid prior to 10-9-2004 is tenable and whether demand of interest and proposing to impose penalty is correct in view of provisions of sub-section 2(B) of section 11A of the Central Excise Act, 1944 even after reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identical issue of eligibility of credit on service tax on agent's commission, was decided by a co-ordinate Bench of the Tribunal in the case of Metro Shoes (P.) Ltd. (supra). The ratio as laid down by the said decision is as under:- "6. Considered the submissions made at length by both sides and perused the records. The issue involved in this case is regarding the denial of credit of the input services utilized by the appellant for the finished goods manufactured and cleared by them. For the proper appreciation of the said provisions, we read the definition of the 'input services' as given in rule 2(l) of the Central Excise Rules, 2004: '(l) 'Input service' means any service,- (i) used by a provider of taxable service for providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case, that the appellant had manufactured shoes in its factory premises and cleared the same to its own show-rooms situated at various places. It is also undisputed that the sale of said shoes takes place from the said show-rooms only and did not take place from the factory premises. If that be so, it has to be accepted that the show-rooms which are belonging to the appellant herein, have to he considered as place of removal. The services utilized by the appellant till the place of removal and the service tax paid thereon are to be considered as services utilized by it for the manufacture of final product and clearance of the same from the place of removals...."(p.85) 5.3 It can be seen from the above reproduced ratio that the defi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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