COMMISSIONER OF C. EX., LUDHIANA Vs. JAINSONS INDUSTRIES

JUDGEMENT

(1.) THIS is an application filed by the department for staying the operation of the order -in -Appeal No. 172/CE/LDH/2010, dated 26 -7 -2010 passed by the Commissioner of Central Excise (Appeals), Chandigarh. The point of dispute in this case is as to whether the respondent, a manufacturer of pipe fittings and who had received the services of securing export orders from the commission agents appointed abroad and on which they had paid service tax under Rule 2(1)(d) of Service Tax Rules, 2004, as the service recipient, would be eligible for Cenvat credit of the Service tax paid by them. In other words, the point of dispute is as to whether the services of business auxiliary service received by the respondent from the commission agents appointed abroad can be treated as their input service. The Assistant Commissioner had decided this issue against the respondent and confirmed Cenvat credit of Rs. 47,862/ - along with interest and imposed penalty of equal amount. However, the Commissioner (Appeals) vide impugned order in appeal set aside the order passed by the Assistant Commissioner. It is against this order that the department has come in appeal and has filed the stay application.

(2.) HEARD Shri K.P. Singh, ld. DR who reiterating the grounds of appeal in the Revenue's appeal emphasised that the service of commission agents received by the respondent is not the service of advertisement or sale promotion, that the commission agent had only secured export orders for which commission had been paid to them by the respondent and this activity cannot be called activity of sale promotion. He, therefore, pleaded that the order of the Commissioner (Appeals) is, prima facie, incorrect.

(3.) THOUGH none appeared for the respondent, there is a letter received from them wherein the respondent have opposed the department's appeal and stay application and pleaded that the impugned order does not merit any interference and the respondent have a very good case on merit.