Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

pj/case law/2016-2017/3429

Eligibility of credit of service tax paid to commission agents
Brief Facts- The brief facts of the case are that appellants have availed CENVAT credit of Service Tax paid on various taxable services received from Foreign Commission Agents who do not have any office in India. The Foreign Commission Agents were providing service in relation to sale of excisable goods for export and charged an amount as commission from the appellants, who make the payment and paid Service Tax in terms of Section 68(2) of the Finance Act. Four show cause notices were issued to the appellant and the lower authorities confirmed the duty demand on the appellant holding that Cenvat credit of Service Tax paid by them on behalf of foreign person on commission which was availed and utilized by them is not proper and legal under the provisions of Central Excise Act, 1944. The appellants filed (Appeals) before the Commissioner of Central Excise (Appeals) against the orders passed by the original authority and Commissioner (Appeals) vide impugned orders dated 9-9-2009 has rejected the appeal. Hence, the appellants are before this Bench.
Appellant’s Contention- The learned Advocate appearing for the appellant submits that the impugned order is based on total misinterpretation of the provisions of law and under the law the appellants are entitled to claim the credit of Service Tax paid by them under Section 66A of the Finance Act read with Section 68(2) again read with Rule 2(1)(d)(iv) of the Service Tax Rules. He further submitted that Commission paid to the agents, who were causing sale of the goods manufactured by the appellant qualifies the input service used in relation to the manufacture of the goods and service rendered by the commission agent will be covered by the expression sales promotion in the definition. He further submitted that the taxable services provided from outside India and received in India shall not be treated as output services under Rule 5 of the Taxation of Services (Provided from Outside India and Received in India) Rules, 2006. He also pointed out that order-in-appeal is clearly contrary to the clarification given by the Board contained in Board Circular No. 345/1/2008-TRU dated 27-6-2008. He also submitted that learned Commissioner (Appeals) has relied upon the Board Circular of 2005 and have not taken into account the clarification of June 2008 which covers as the appellants case. He also relied upon the decision of Punjab & Haryana High Court in the case of Commissioner of Central Excise Ludhiana v. M/s. Ambika Overseas, reported in AIT-2011-379-HC = 2012 (25) S.T.R. 348 (P&H), in which the assessee was allowed to avail the Cenvat credit on the services provided by Overseas Commission Agents (provided in relation to canvassing and procuring of orders) as input services.
Respondent’s Contention- The learned Appraiser (A.R.) for the Revenue reiterated the findings of the Commissioner (Appeals).
 
Reasoning Of Judgement- After hearing both the sides, the Honorable court found that the issue involved in these appeals is whether the appellants are eligible for the Cenvat credit of Service Tax paid by them on the services provided to them by the foreign person (Foreign Commission Agent). The Honorable court found that Commissioner (Appeals) has denied the benefit of the Service Tax credit relying on the Board Circular dated 3rd October 2005. The Honorable court found that in this Circular it was clarified by the Board as under :-
“The view that such recipient of taxable services even if they discharge their service tax liability under Section 68(2) are not entitled to avail credit of the service tax paid on taxable services received by them under CENVAT Credit Rules, 2004, is in accordance with the statutory provisions and there is no scope for any other interpretation”.
In 2008 Board has issued another Circular vide F. No. 345/1/2008-TRU dated 27-6-2008, it was clarified as under:-
“The recipient of the service is required to pay service tax under Section 66A though the service is actually provided not by the recipient but by a person located in a country other than India. Such taxable services, not being actually provided by the person liable to pay service tax, are not treated as “output services” for the purpose of CENVAT Credit Rules, 2004. However, service tax paid under Section 66A is available as “input credit” under CENVAT Credit Rules, 2004 provided the said services are used as input services by the manufacturer or producer of final products or a provider of output taxable service”.
There is no doubt that appellants are manufacturer of excisable goods and in such a case Board Circular of 2008 will prevail over Circular of 2005.
TheHonorable court also found that the issue was further confirmed by the Punjab & Haryana High Court in the case of Commissioner of Central Excise Ludhiana v. M/s. Ambika Overseas (supra) where the High Court has held that the CESTAT was correct in holding that the respondent is entitled to avail the Cenvat credit on the services provided by Overseas Commission Agents (provided in relation to canvassing and procuring of orders) as input services. In view of the Board Circular 2008 and as well as the decision of Punjab and Haryana High Court, theHonorable court found that the appellants are eligible for Cenvat credit of the service tax paid by them on commission paid to the ‘overseas commission agents’ and accordingly appeals are allowed.
 
Decision- Appeal allowed.
Comment- The crux of the case that the credit of service tax paid on commission paid to foreign agent is admissible in view of decision given by the Punjab & Haryana High Court in the case of Commissioner of Central Excise Ludhiana v. M/s. Ambika Overseas and clarification issued by the Board. Moreover, the issue has been resolved as the dispute was created by contrary decision given by the Hon’ble Gujarat High Court in the case of Cadila Healthcare Ltd. and now amendment has been made in the definition of input service under Rule 2(l) wherein explanation has been inserted. Hence, the credit of service tax paid to commission agents is admissible.
 
Prepared By – Prateeksha Jain
 
 
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com