2012 (7) TMI 354 - AT - Central Excise

Tribunal overturns denial of cenvat credit for service tax on transportation, remands for fresh adjudication.

The Tribunal accepted the appeal, setting aside the order denying cenvat credit for service tax on outward transportation. The Commissioner's decision was ... Eligiblity of cenvat credit of service tax paid on outward transportation of the goods from the factory to the customer s premises - sales are on FOR destination basis - denial of credit - department who pleaded that the impugned order has been passed based on the judgement of the Tribunal in the case of ABB Ltd. (2009 (5) TMI 48 (Tri) ) without any reference to the facts of the case - It is pleaded that even if the customer s premises is treated as the place of removal, there is no finding by CCE(Appeals) that the sales were on FOR destination basis – Held that:- Neither the Commissioner (Appeals) nor the adjudicating Joint Commissioner have looked into this aspect of the case by referring to the facts - Matter remanded to the adjudicating authority for denovo adjudication Issues:1. Eligibility for cenvat credit of service tax on outward transportation.2. Interpretation of place of removal for central excise duty.3. Adjudication based on facts and circumstances of the case.Eligibility for Cenvat Credit of Service Tax on Outward Transportation:The case involved a dispute regarding the eligibility of a respondent, a paper manufacturer, for cenvat credit of service tax paid on outward transportation of goods from the factory to the customer's premises during the period from February 2005 to May 2007. The respondent claimed eligibility based on their sales being on a FOR destination basis, considering the buyer's place as the place of removal. However, the department issued a show cause notice denying the credit and imposing a penalty. The Joint Commissioner confirmed the demand, leading to an appeal by the respondent against this decision.Interpretation of Place of Removal for Central Excise Duty:The Commissioner (Appeals) allowed the appeal and set aside the order, relying on the judgment of a larger bench of the Tribunal in a previous case. The revenue filed an appeal against this decision, arguing that the impugned order was passed without proper reference to the facts of the case. The department contended that as per the definition of place of removal under the Central Excise Act, the place of removal cannot be any place other than the factory premises, warehouse, or depot/premises of the consignment agent. The department emphasized that the place of delivery to the customer cannot be considered the place of removal unless sales were on a FOR destination basis. The department requested setting aside the impugned order and remanding the case for a fresh adjudication based on all relevant facts and circumstances.Adjudication Based on Facts and Circumstances of the Case:The Tribunal found that neither the impugned order nor the original order were based on a thorough examination of the facts to determine if the ownership of the property was transferred at the customer's premises. The Tribunal agreed with the department's arguments and held that the impugned order was not sustainable in law. Consequently, the appeal was accepted, the impugned order was set aside, and the matter was remanded for fresh adjudication, providing both parties with an opportunity to present their case. The appeal was disposed of accordingly.