2019 (5) TMI 652 - AT - Central Excise

Tribunal grants CENVAT Credit for pre-2008 transport, emphasizing 'place of removal' in landmark decision.

The Tribunal allowed the appeal, granting the appellant the benefit of availing CENVAT Credit on outward transportation of goods before the 2008 ... CENVAT credit of service tax on outward transportation - definition of 'input service' prior to April 1, 2008 - place of removal - compatibility of Board Circular and tribunal precedents with statutory definitionCENVAT credit of service tax on outward transportation - definition of 'input service' prior to April 1, 2008 - place of removal - Entitlement to CENVAT credit of service tax paid on outward transportation of goods up to March, 2008 (i.e. before the amendment of the definition of 'input service'). - HELD THAT: - The Tribunal applied the ratio of the Hon'ble Supreme Court in Commissioner of Customs, Central Excise & Service Tax, Guntur v. Andhra Sugars Ltd., which held that under the definition of 'input service' prevailing prior to April 1, 2008 a manufacturer/consignor was entitled to CENVAT credit for services used in relation to clearance of final products 'from the place of removal' and for outward transportation up to the place of removal. The Board's Circular of August 23, 2007 and tribunal decisions (Gujarat Ambuja; Ultratech) were treated as consistent with that statutory scheme. The statutory concept of 'place of removal' (as understood from Section 4 of the Central Excise Act, 1944) determines the extent of admissible transport credit; where contractual terms establish that transfer of property and risk occurs at destination, the place of removal may be at that destination and transport up to that point would qualify. As the Department did not dispute satisfaction of the conditions identified for determining the place of removal, the appellant was held entitled to the credit of service tax paid on outward transportation prior to the amendment of the definition. [Paras 8, 9]The impugned order demanding service-tax credit on outward transportation prior to April 1, 2008 was set aside and the appellant held entitled to CENVAT credit with consequential relief.Final Conclusion: Appeal allowed; the appellant is entitled to CENVAT credit of service tax paid on outward transportation up to the place of removal for the period upto March, 2008, and the impugned order is set aside with consequential benefit to the appellant. Issues: Availability of CENVAT Credit on service tax paid on outward transportation prior to the amendment of the definition of 'input service' by Notification No. 10/2008-CE (N.T) dated 01.03.2008.Analysis:The appeal was listed for admission despite the amount involved being less than Rs. 2.00 lakhs, as the appellant intended to contest the issue on merits. The dispute focused on the availability of CENVAT Credit of Service Tax paid on outward transportation up to March 2008, before the amendment of the definition of 'input service.' The Ld. Advocate for the appellant argued that the only issue in the appeal was the availability of CENVAT Credit, which was confirmed by the Adjudicating Authority and later appealed by the Department. The Ld. Commissioner (Appeals) allowed the appeal, leading to the present appeal before the Tribunal. Both sides presented their arguments, and the Tribunal examined the issue based on the definition of 'input service' prevailing before the amendment. The Tribunal referred to a Supreme Court judgment which clarified that transportation of goods from the place of removal to the warehouse or customer's place qualified for CENVAT Credit under the pre-amendment definition of 'input service.'The Tribunal highlighted that the phrase 'place of removal' was crucial in determining the eligibility for availing credit on service tax paid on transportation of excisable goods. The Tribunal emphasized that the eligibility depended on where the goods were removed, such as a factory gate sale, non-duty paid warehouse, or duty paid depot. The Tribunal also discussed scenarios where the manufacturer might claim the sale occurred at the destination point based on the sale contract terms. Referring to relevant Circulars and judgments, the Tribunal concluded that outbound transportation from the place of removal, whether to a warehouse or customer's place, constituted an input service eligible for CENVAT Credit. The Tribunal set aside the impugned order and allowed the appeal, granting consequential benefit to the appellant.In summary, the Tribunal's detailed analysis focused on the interpretation of the definition of 'input service' before the 2008 amendment, emphasizing the significance of the 'place of removal' in determining eligibility for CENVAT Credit on outward transportation of goods. The Tribunal's decision aligned with the Supreme Court's ruling, allowing the appellant to avail CENVAT Credit on outward transportation from the place of removal, whether to a warehouse or customer's place.