Dura Line India Pvt. Ltd. Versus Commissioner of CGST & Customs Goa
Central Excise
2018 (7) TMI 767 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 22-5-2018
Appeal No. E/85637/18 – A/86806/2018
Central Excise
Mr. Sanjiv Srivastava, Member (Technical)
Ms. Anjali Hirawat, Advocate for appellant
Shri A.B. Kulgod, Asst. Commr (AR) for respondent
ORDER
Per: Sanjiv Srivastava
The issue in the appeal is in respect of admissibility of CENVAT credit availed in respect of services provided by the over-seas commission agent including the services of sales promotion by the appellant.
2. The matter was represented by Ms Anajali Hirawat, Advocate on behalf of the appellant and Shri A.B. Kulgod, Authorised Representative on behalf of Revenue.
3. Heard both sides and perused the records.
4. Relying on following decisions, learned Counsel argued that in respect of the same services provided by the overseas commission agents, CENVAT Credit have continuously been allowed
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(b) Essar Steel India Ltd. v. CCE & ST – 2016 (335) ELT 660 (Tri. – Ahmd)
(c) CCE ST v. Shivalik Rasayan Ltd. – 2016 -TIOL-3412- CESTAT-Del
(d) Beloorbayir Biotech Ltd. v. CCE – 2018 (5) TMI 24 – CESTAT Bangalore
(e) CCE v Shree Rathi Steel (Dakshin) Ltd – 2018 (5) TMI CESTAT New Delhi.
4.2 Lastly, on limitation, she submitted that since there was contradicting views on the issue, larger period of limitation should not be invoked in view of the decision of the Hon'ble Apex Court as follows:-
(a) Blue Star Ltd. v. Union of India – 2015 (322) ELT 820 (SC)
(b) Continental Foundation Jt. Venture v. CCE – 2007 (216) ELT 177 (SC).
5. On the contrary learned A.R. reiterated the finding of the Commissioner.
6. I have considered the matter along with the sample agreement with the commission agents. From the agreement produced by the appellant which has been made between M/s. MAZER-the foreign commission agents and the appellant clearly placed the responsibility to undertake activ
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otherwise agreed by both the parties.
(e) MASER will be responsible for (i) developing marketing plans to generate salesof products; (ii) identifying the key decision makers and contacts for the purchase of Products; (iii) aggressively promoting the sale of products and other business objectives of DURALINE; (iv) providing guidance to DURALINE concerning the customs and practices of public agencies and private business and liaison between DURALINE and such agencies and businesses; (v) occasionally providing translation, interpretation, administrative support and other similar services as requested, (vi) Jointly preparing tenders and compliance statements and other submission and compliances. As an independent contractor, MASER shall be responsible for the manner in which and the time during which the above-described services are performed; however, in so doing MASER agrees to use its best efforts to promote the sale of the said products.
(f) MASER represents and warrants to DURALI
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er form of communication received from any Governmental agency in regard to the activities contemplated herein under. MASER shall b liable for any representations that DURALINE has not specifically authorized in writing.
(i) MASER shall perform its business activities in compliance with all the State laws, rules and regulations concerning marketing and sale of DURALINE products while performing its duties pursuant to this agreement and shall not violate such laws, rules or regulations.
“6. Sales Target:
a. MASER shall endeavor to secure maximum sale for DURALINE in the said TERRITORY.
b. MASER will submit sector-wise regular market potential of the said TERRITORY on a quarterly basis as per the attached BBC format.
7. Payment:
On specific orders/requirement of MASER, DURALINE shall supply its products agreed by both parties. The payment for each shall be made by MASER as per the terms and conditions laid down in the relative Purchase Order for the procurement of the products.
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ote or sell any other similar product of any other company, which is directly competitive in nature to DURALINE, subject to the provisions in clause 4 c.
11. Confidentiality:
Except as expressly agreed to in writing by DURALINE, MASER shall not at any time or in any manner, directly or indirectly, use of disclose to any party and trade secrets of DURALINE. During the term hereof and, for a period of 1 year thereafter MASER will treat as proprietary the information belonging to DURALINE disclosed to MASER under this Agreement. MASER agrees that within 72 hours following effective date of termination or non-renewal hereof MASER will return to DURALINE all information and materials in its possession concerning the trade secrets, customer information and lists, proprietary information and research of DURALINE.
12. Termination: Non-Renewal:
a) All obligations arising out of the commitments made during the tenure of the Agreement shall be fulfilled by both parties even after the termina
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terminate this Agreement on sixty (60) days prior written notice to MASER.
I. If either party in its own judgment feels that the agreement with other party is either detrimental to or not beneficial to its business in Thailand or any other market.
II. If MASER fails to meet any of its annual revenue goals for the year; or
III. If MASER liquidates or discontinues its business or terminates the majority of its sales force in the Territory; or
IV. If DURALINE discontinues manufacturing/marketing of the Said Products. Under this provision MASER will be given as option of a last time buy.
V. If MASER starts its own manufacturing of the said products.
13. Jurisdiction:
In the event of any dispute or difference or any other incidental matter relating to this agreement the courts of competent jurisdiction in India only to the exclusion of all other courts shall have jurisdiction and would be competent to adjudicate all the matters arising out of, related to and/or connected with this
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