CMI FPE LTD. Vs. COMMISSIONER, CENTRAL EXCISE & SERVICE TAX
LAWS(CE)-2015-6-35
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on June 22,2015

Cmi Fpe Ltd. Appellant
VERSUS
Commissioner, Central Excise And Service Tax Respondents


Referred Judgements :-

CCE V/S. AMBIKA OVER -SEAS [REFERRED TO]
COMMISSIONER V/S. DYNAMIC INDUSTRIES LTD. [REFERRED TO]
CCE V/S. CADILA HEALTHCARE LTD [REFERRED TO]


JUDGEMENT

P.K.DAS,MEMBER (J) - (1.)The Appellants were engaged in the manufacture of excisable goods viz. parts of Cold Rolling Mills and Galvanising Line/Process Line etc. classifiable under Chapter 84 of the Schedule to the Central Excise Tariff Act, 1985. They availed input service credit during the period October 2007 to February 2008 on sales commission in respect of service rendered abroad. A Show Cause Notice Dt. 29.10.2009 was issued proposing to deny the CENVAT Credit on sales commission. By the impugned order, the Adjudicating authority confirmed the demand of CENVAT Credit along with interest and imposed penalty of equal amount. The learned Advocate on behalf of the Appellant fairly submits that the Hon'ble Punjab & Haryana High Court in the case of CCE v/s. Ambika Over -seas, [2012] 22 taxmann.com 83 held in favour of the Appellant that the services provided by the overseas commission agent for canvassing and procuring of order are within the ambit of definition of 'input service' under Rule 2(1) of CENVAT Credit Rules, 2004. But, the Hon'ble Gujarat High Court in the case of CCE v/s. Cadila Healthcare Ltd. : [2013] 32 taxmann.com 105 held against the Assessee. He submits that the Appellant Company is situated within the jurisdiction of Hon'ble Bombay High Court and therefore, the decision of Hon'ble Punjab & Haryana High Court should be followed.
(2.)He further submits that the entire demand is barred by limitation. It is revealed from the Board's Circular No. , Dt. 29.04.2011, the various decisions of the Tribunals and the Hon'ble Punjab & Haryana High Court, the Appellant was under bona fide impression that the credit is available on sales commission. It is also submitted that the Appellant maintained the statutory records and filed the returns and therefore, there is no suppression of facts with intent to evade payment of tax. He relied upon the decision of the Tribunal in the case of Jayaswal Neco Industries Ltd. v/s. CCE & ST [Final Order Nos. 52257 -52258/2014, dated 07 -05 -2014] and the decision of Hon'ble Gujarat High Court in the case of Commissioner v/s. Dynamic Industries Ltd., [2014] 47 GST 643/49 taxmann.com 240.
(3.)On the other hand, the learned Authorised Representative on behalf of the Revenue reiterates the findings of the Adjudicating Authority. He submits that the Hon'ble Gujarat High Court considered the decision of Hon'ble Punjab & Haryana High Court and therefore, the latest decision of the Hon'ble Gujarat High Court, on merit, should be followed by this Bench. Regarding the demand of tax is barred by limitation, the learned Authorised Representative for the Revenue submits that there is no material available that during the material period, the Appellant had a reason to bona fide belief that the Appellant was eligible for credit. He submits that all the decisions have come after the period of dispute.
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