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TMI Blog2024 (1) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... esh R Kurup, Learned Superintendent (AR) appearing on behalf of the Revenue/ Appellant reiterates the grounds of the appeal. He further submits that the Learned Commissioner though held that the appellant is not entitled for Cenvat credit on Sales Commission. However, wrongly set aside the demand on the ground of time bar, for the extended period. 2.1 He further submits that the appellant cannot entertained any bona fide belief in availing the wrong credit on Sales Commission, as the issue was decided way back in the case of Maruti Suzuki Ltd. 2009 (240) ELT 641 (S.C.) that the service, which does not have nexus with the activity of manufacturing the credit cannot be allowed. Therefore, in view of the Supreme Court judgment, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Himadri speciality Chemical Limited- 2022 (9) TMI 1213- Culcutta High Court Commissioner Vs. Essar Steel India Ltd.- 2016 (45) STR J2018 (Guj.) Essar Steel India Vs. CCE & ST, Surat-I- 2016 (335) ELT 660 (Tri.-Ahmd.) 4. On careful consideration of the submission made by the both the sides and perusal of record, we find that as regard the merit of the case, whether the assessee is eligible to avail the Cenvat credit on Sales Commission the issue is pending before the Hon'ble jurisdictional High court of Gujarat in the case of commissioner Vs. Essar Steel Ltd 2016 (45) STR J 218 Gujarat. Therefore, in our considered view, the merit of the case cannot be taken up. However, in the present appeal, the limited issue to be decided is that whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re or clearance of final products from the place of removal?" 3. The facts, in brief, necessary for adjudication as narrated in the appeal, are that the respondent is engaged in the manufacture and clearance for export and home consumption of hand tools. The respondent had been paying overseas commission to its overseas commission agents who were causing sale of the exported goods, on payment of commission at an agreed percentage of business generated by them. As the commission agents were non-residents from outside India and had no office in India, the respondent being the receiver of their services was liable to pay service tax on the value of overseas commission paid by it to them for procuring business auxiliary services under Rule 2( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31-10-2007 confirmed the recovery of Rs. 4,20,592/- besides imposing penalty of the equal amount, under Rule 15 of the 2004 Rules. 5. The respondent preferred appeal before the Commissioner (Appeals) challenging the order-in-original dated 31-10-2007. The Commissioner (Appeals) allowed the appeal and set aside the above order, vide order dated 27-3-2008. 6. The appellant-department preferred appeal before the Tribunal. The Tribunal upheld the order of the Commissioner (Appeals) by its order dated 20-7-2010. 7. Hence, this appeal by the appellant-Department. 8. The Tribunal while affirming the order of Commissioner (Appeals) and adjudicating the issue in favour of the respondent had come to the conclusion that the activities in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the respondent has taken the credit is not the prescribed document, it is to be noted that the respondent is not a service provider per se. They are basically the service recipients. They are required to pay service tax as a deemed service provider. Under these circumstances, the respondents have paid service tax using TR-6 challans and taken credit treating the said documents as documents covered by Rule 9(1) of the Cenvat Credit Rules, 2004. There is nothing irregular about it." 9. In the light of the aforesaid finding, learned counsel for the revenue was unable to justify that the claim of cenvat credit by the assessee was erroneous in any manner. No perversity or illegality could be shown by the learned counsel in the order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules. Whereas, the specific issue of availment of Cenvat Credit on Sales Commission has been decided in various judgments. Therefore, in our considered view the judgments dealing with the specific issue will prevail over the judgment in respect of general principle of the Cenvat Credit Rules. Accordingly, we do not find any mala fide on the part of the respondent. Therefore the Adjudicating Authority's order setting aside the demand of Cenvat credit on Sales Commission exclusively on the ground of time bar is not found any fault. Therefore, we are of the considered view that the extended period was not invokable for the demand beyond the normal period. 5. Accordingly, we do not find any infirmity in the impugned order setting aside the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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