2015 (7) TMI 1001 - HC - Central Excise

CENVAT Credit Allowed on Outward Transportation Service Tax Post 01.04.2008 Amendment Under Relevant Rules

M/s Madras Cements Ltd Versus The Additional Commissioner of Central Excise, The Commissioner of Central Excise (Appeals-I)

The HC held that the appellant was entitled to CENVAT credit on service tax paid for outward transportation of goods even after the amendment effective ... Denial of CENVAT Credit - Input service - Place of removal - Whether the Tribunal was correct in disallowing CENVAT credit of service tax paid on the GTA service which is availed by the manufacturer on outward transport from the place of removal for the period after 31.03.2008 subsequent to the amendment of definition of 'input service' under Rule 2(l)(ii) of CENVAT Credit Rules - Held that:- As long as the sale of the goods is finalized at the destination, which is at the door step of the buyer, the change in definition of 'input service' which came into effect from 01.04.2008 would not make any difference. A perusal of invoices makes it clear that the goods were to be delivered and sale completed at the address of the buyer and no additional charge was levied by the assessee for such delivery. From these facts it is clear that the sale was completed only when the goods were received by the buyer. Since we are of the opinion that the sale had concluded only after the delivery of the goods was made at the address of the buyer, in the facts of the present case assessee would be entitled to the benefit of CENVAT credit on Service Tax paid on outward transportation of goods by the assessee even after 01.04.2008. The appellant-assessee would thus be entitled to such benefit for the period 01.04.2008 to 31.07.2008 which has been denied to it by the authorities below. - Decided in favour of assessee. ISSUES: Whether the Tribunal was correct in disallowing CENVAT credit of service tax paid on the GTA service availed by the manufacturer on outward transport from the place of removal for the period after 31.03.2008 subsequent to the amendment of the definition of 'input service' under Rule 2(l)(ii) of the CENVAT Credit Rules, 2004'How is the 'place of removal' to be determined for the purpose of input service credit under the amended CENVAT Credit Rules, 2004'Whether payment of transport charges, insurance, or risk borne during transit are relevant considerations to ascertain the place of removal under the CENVAT Credit Rules'Whether the sale of goods completed at the destination impacts the entitlement to CENVAT credit on outward transportation services? RULINGS / HOLDINGS: The Tribunal erred in disallowing CENVAT credit for the period after 31.03.2008 as the amendment substituting 'clearance of final products, upto the place of removal' with 'clearance of final products, from the place of removal' does not preclude entitlement to credit where sale is completed at the destination; thus, the appellant is entitled to CENVAT credit on outward transportation for the relevant period.The 'place of removal' must be ascertained in terms of the Central Excise Act, 1944 read with the Sale of Goods Act, 1930, and is determined by the place where the sale takes place or where the property in goods passes from seller to buyer, not by payment of transport charges or risk borne.Payment of transport charges, inclusion of transport charges in value, payment of insurance, or who bears the risk are explicitly 'not the relevant considerations to ascertain the place of removal' as clarified by the Circular dated 20.10.2014 issued by the Central Board of Excise and Customs.Where the sale is completed only upon delivery at the buyer's destination, and the invoice terms indicate 'FOR destination' (Free On Road), the manufacturer retains ownership and the sale concludes at the destination, entitling the manufacturer to CENVAT credit on outward transportation service tax paid. RATIONALE: The Court applied the amended definition of 'input service' under Rule 2(l) of the CENVAT Credit Rules, 2004, effective from 01.04.2008, which replaced 'clearance of final products, upto the place of removal' with 'clearance of final products, from the place of removal'.The definition of 'place of removal' was further clarified by insertion of Rule 2(qa) and a Circular dated 20.10.2014, which emphasized that the place of removal is to be determined based on the provisions of the Central Excise Act, 1944 and the Sale of Goods Act, 1930, focusing on the transfer of property in goods rather than transport payment or risk allocation.The Court rejected the assessing authority's reliance on absence of documentary evidence of insurance coverage and the contention that sale was finalized at the factory gate, holding that these are irrelevant considerations under the clarified legal framework.The Court noted that the Tribunal failed to consider the contractual terms and invoices indicating that sale was completed at the buyer's destination, and instead relied solely on the amended definition, which was a narrow and incomplete approach.No dissent or doctrinal shift was noted; the Court's interpretation aligns with statutory amendments and authoritative clarifications provided by the Central Board of Excise and Customs.