2014 (10) TMI 297 - HC - Service Tax

Court denies Cenvat credit on GTA services as cost not included in goods price. Upholds Tribunal decision.

LAFARGE INDIA LTD Versus COMMISSIONER OF CENTRAL EXCISE, RAIPUR

The court held that the Assessee was not entitled to claim Cenvat credit on service tax paid for Goods Transport Agency (GTA) services as the cost of GTA ... CENVAT Credit - input service - Goods Transport Agency Service - is the assessee entitled to claim Cenvat credit of the service tax paid on the GTA-service even though it was not integral part of the price of goods - Held that:- Fundamental principle of cenvat credit is to avoid double taxation i.e. cenvat credit may be taken only of those inputs, whose price was added in the price of the goods or was included towards the price of the goods and not otherwise. It is also clear from the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 (the Valuation Rules). Assessee has not treated the GTA-services of transporting goods to the destination as a part of the input service. In case it had so treated then it should have added this value in the price of the goods or in the valuation for calculating duty. Assessee has not included the amount paid for the GTA-service in the price of the goods. It has not chosen it to be a part of the price and as such, the Assessee was not entitled to claim Cenvat credit for the same. There is no illegality in the order of the Tribunal. This is also clear from the Circular. an assessee is only entitled to claim cenvat credit on service tax paid for the Goods Transportation Agency service provided amount paid was integral part of the price of the goods - the amount paid for the GTA service was not integral part of the price of the goods - Assessee was not entitled to claim cenvat credit of the service tax paid - Decided against assessee. Issues Involved:1. Entitlement to Cenvat Credit on service tax paid for Goods Transport Agency (GTA) services.2. Reliance on the case of Gujarat Ambuja Cements by the Tribunal.Detailed Analysis:Entitlement to Cenvat Credit on Service Tax Paid for GTA ServicesFacts:The Assessee, a manufacturer of cement and clinker, supplied goods on a freight on road (FOR) basis, claiming ownership until delivery at the destination. The Assessee did not include the amount paid for GTA services in the price of the goods but claimed Cenvat credit on the service tax paid for these services.Legal Provisions:- Cenvat Credit Rules, 2004 (Rule 2(l)): Defines 'input service' to include services used in relation to the manufacture of final products and clearance from the place of removal.- Rule 3 of Cenvat-Rules: Allows manufacturers to take credit for service tax paid on input services.- Section 4 of the Central Excise Act, 1944: Defines 'place of removal' and its relevance in determining the valuation of excisable goods.- Rule 5 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000: Specifies that the value of excisable goods excludes the cost of transportation from the place of removal to the place of delivery.Arguments:- Assessee: Claimed that since the goods were booked on FOR basis and ownership continued until delivery, GTA services should be treated as input services, making them eligible for Cenvat credit.- Department: Contended that since the value of GTA services was not included in the price of the goods, it could not be considered an input service for claiming Cenvat credit.Judgment:The court held that the fundamental principle of Cenvat credit is to avoid double taxation, which means credit can only be taken if the cost of inputs is included in the price of the goods. Since the Assessee did not include the cost of GTA services in the price of the goods, it was not entitled to claim Cenvat credit. The Tribunal's order, which upheld the reversal of Cenvat credit, was found to be correct.Reliance on Gujarat Ambuja Cements CaseArguments:- Assessee: Argued that the Tribunal erred in relying on the Gujarat Ambuja Cements case, which had been set aside by the Punjab & Haryana High Court.- Court's Observation: The primary issue was the entitlement to Cenvat credit based on the inclusion of GTA service costs in the price of goods, rendering the reliance on Gujarat Ambuja Cements case secondary.Judgment:The court concluded that the Assessee was not entitled to Cenvat credit as the freight charges were not integral to the price of the goods. The Tribunal's reliance on the Gujarat Ambuja Cements case did not affect the outcome since the primary issue was the non-inclusion of freight charges in the price of goods.Conclusion:1. In case of sale at the destination, an Assessee is entitled to claim Cenvat credit on service tax paid for GTA services only if the amount paid is integral to the price of the goods.2. The Assessee in this case did not include the GTA service cost in the price of goods and therefore was not entitled to claim Cenvat credit.3. The question was answered in favor of the Department and against the Assessee.4. The tax case was dismissed.Order:The appeal was dismissed, affirming the Tribunal's decision to reverse the Cenvat credit claimed by the Assessee.