2022 (3) TMI 187 - AT - Central Excise

Appeal Allowed, Case Remanded for Fresh Consideration.

COSMO FILMS LTD Versus C.C.E. & S.T. -VADODARA-I

The appeal was allowed by the Member (Judicial) after setting aside the impugned order. The case concerning the entitlement of Cenvat credit on Outward ... CENVAT Credit - input services - Outward GTA - HELD THAT:- In the present case it is found prima facie that the sale is on FOR, if it is so the appellant is entitled for the Cenvat Credit in the light of the judgment in case of Ultratech Cement Ltd [2019 (2) TMI 1487 - CESTAT AHMEDABAD] and Sanghi Industries [2019 (2) TMI 1488 - CESTAT AHMEDABAD] upheld by the Hon’ble High Court of Gujarat. However, since the appellant has not filed the reply/any documents with regard to the nature of the sale whether it is FOR or otherwise, the matter needs to be reconsidered. Reliance placed on judgement by Revenue - HELD THAT:- The judgment of Ultratech cement of the Apex Court [2018 (2) TMI 117 - SUPREME COURT] has been considered by this tribunal in the case of Ultratech Cement Ltd and Sanghi Industries therefore, the same stands distinguished - As regard the judgment cited by the revenue in the case of Andhra Cement Ltd [2020 (6) TMI 354 - CESTAT, HYDERABAD], it is found that this judgment has not considered the judgment of this Tribunal which was upheld by The Hon’ble High Court of Gujarat [2020 (3) TMI 1206 - GUJARAT HIGH COURT]. However, this tribunal falls within the jurisdiction of the High court of Gujarat, the judgment of Hon’ble High court of Gujarat is binding. Therefore the judgment of Andhra Cement Ltd is distinguished. Appeal is allowed by way of remand to the Adjudicating Authority to decide a fresh after verifying the documents. Issues:- Entitlement of Cenvat credit on Outward GTAAnalysis:The main issue in this case revolves around the entitlement of the appellant for Cenvat credit on Outward GTA. The appellant, represented by Shri Jigar Shah, argued that the GTA freight expenses were incurred on goods sold on FOR basis, with no separate charges to customers for freight. However, it was noted that the documents supporting this claim were not submitted to the Original Authority for consideration. The appellant relied on previous Tribunal decisions, namely Ultratech Cement Ltd and Sanghi Industries, upheld by the High Court of Gujarat, to support their case.On the other hand, the revenue, represented by Shri G. Kirupanandan, cited the Hon'ble Supreme Court Judgment in Ultratech Cement Ltd, emphasizing that even in cases of sales on FOR basis, outward transportation expenses may not be eligible for Cenvat credit. Various judgments were referenced to support this argument, including ARL Infratech Ltd, Mangalam Cement Ltd, and Andhra Cement Ltd.After careful consideration, the Member (Judicial) found that the issue at hand pertained to Cenvat Credit on Outward GTA. While it was prima facie evident that the sales were on FOR basis, the lack of submission of relevant documents by the appellant necessitated a reconsideration of the matter. The Member distinguished the judgments cited by the revenue, stating that the Tribunal had already considered the Ultratech Cement Ltd judgment. The judgment of Andhra Cement Ltd was also distinguished as it did not take into account the Tribunal's decision upheld by the High Court of Gujarat, which is binding on the Tribunal.Consequently, the impugned order was set aside, and the appeal was allowed by way of remand to the Adjudicating Authority for fresh consideration after verifying the necessary documents. The appellant was to be given ample opportunities for personal hearing and submission of documents and written reply during the denovo adjudication process.