Custom, Excise & Service Tax Tribunal
Pan Asia Corporation vs Commissioner Of Central Excise, Mumbai ... on 7 July, 2009
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Application No. E/S/616/09 in Appeal No. E/394/09
(Arising out Order-in-Appeal No. KKS (17) 17/MI/2009 dated 17.3.09 passed by the Commissioner of Central Excise (Appeals), Mumbai)
For approval and signature:
Honble Mr. P.G. Chacko, Member (Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether Their Lordships wish to see the fair copy of the Order?
4.
Whether Order is to be circulated to the Departmental authorities?
Pan Asia Corporation
Appellant
Vs.
Commissioner of Central Excise, Mumbai II
Respondent
Appearance:
Shri V.S. Sejpal, Advocate for the appellant Shri B.P. Pereira, JDR for the respondent CORAM:
Honble Mr. P.G. Chacko, Member (Judicial) Date of hearing : 7.7.2009 Date of decision : 7.7.2009 O R D E R No:..
After examining the records and hearing both sides, I am of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with the pre-deposit, I take up the appeal.
2. In adjudication of show-cause notice, the original authority confirmed against the assessees demand of Rs.2,36,130/- comprising service tax of Rs.2,31,500/- and education cess of Rs.4,630/- under Rule 14 of the CENVAT credit Rules, 2004 read with Section 11A of the Central Excise Act. It also demanded interest on the above amount under Rule 14 read with Section 11AB. It also imposed penalty on the assessee under Rule 15 read with Section 11AC. This decision of the original authority was upheld by the first appellate authority in an appeal filed by the assessee. Hence the present appeal.
3. After hearing both sides and considering their submissions, I find that the short question arising for consideration is whether CENVAT credit of the service tax paid by the appellant to a commission agent during the period from April 2006 to January 2007 is admissible to the former. According to the lower authorities, this benefit is liable to be restricted to procurement of purchase orders of commission agents and is not admissible insofar as the collection of sale price of the goods is concerned. In other words, the lower authorities have bifurcated the commission agents function into pre-clearance and post-clearance of goods and have denied the benefit to the assessee in respect of latter. This is clearly not permissible inasmuch as the commission agents service is one integrated service which cannot be split up in the manner done by the lower authorities. Neither of the authorities has a case that the commission agent is not covered by rule 2(l) of CENVAT credit Rules, 2002. In the circumstances, the appellant is entitled to the benefit of CENVAT credit on the entire amount of commission paid by them to the commission agent for the service received from the latter during the period of dispute. As held by this Tribunal in CCE vs. Bilai Auxiliary Industries 2009 (14) STR 536 (Tri-Del). The DR has claimed support from International Tractors Ltd. vs. CCE 2006 (201) ELT 461 (Tri-Del). On a perusal of this judgement, I find that the issue discussed therein is altogether different.
4. The issue involved in the instant case is already covered against the Revenue by the case law cited by the ld. counsel. There is no material on record indicating that the Tribunals order in Bilai Auxiliary Inds. was not accepted by the department. In the result, the impugned order is set aside and this appeal is allowed.
(Dictated in Court) (P.G. Chacko) Member (Judicial) //SR 3