2023-VIL-98-SC-ST
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SERVICE TAX Supreme Court Cases

Service Tax - Input Tax Credit on commission paid to the foreign agent – Assessee appeal against part of High Court order which held that Tribunal had reversed the findings of the adjudicating authority without giving any reason in regard to finding that foreign commission agent service is in the nature of sales promotion and Cenvat credit was admissible on service tax – HELD - insofar as the Tribunal’s finding is concerned, the High Court found that the Tribunal had reversed the findings of the adjudicating authority without giving any reason in support thereof and had merely sought to compare the payments made for services rendered by a foreign agent as analogues to a clearing and forwarding agent who actually effects sales - the nature of the agreement between the assessee and the agent; the invoices indicating the payments made to the agent would all be relevant factors to be considered while arriving at a finding as to whether the appellant-assessee is entitled to claim input tax credit - the High Court ought to have then remanded the matter to CESTAT for a fresh consideration by giving an opportunity to the appellant to place on record the necessary documents - the appellant-assessee is given an opportunity to place on record the relevant documents so as to assist CESTAT to arrive at a categorical finding on the nature of payment made by the assessee to the foreign agent and as to whether the assessee is entitled to claim input tax credit on the said payment - the impugned judgment and order of the High Court as well as of the CESTAT are set aside to the extent of observations of the High Court as well as the CESTAT on the point of commission paid to the foreign agent - The appeals are allowed
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