TaxTMI 
TaxTMI 
2017 (8) TMI 147
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....covery of the credit with interest and proposal for penalty. On adjudication the demand was confirmed with interest and equal amount of penalty. After unsuccessfully challenging the Order before the Ld. Commissioner(Appeals), the present Appeal is filed. 3. The learned Advocate Shri S.R. Dixit, advancing the argument for the Appellants submitted that in few cases the period involved comprises of both prior to 01.04.08 and thereafter. It is his contention that the admissibility of CENVAT Credit on GTA services prior to 01.04.2008 has been settled by the jurisdictional High Court in the case of CCE Vs Parth Poly Woven Pvt. Ltd - 2012 (25) STR 4 (Guj.). It is his contention that notwithstanding any contrary judgments, the principle laid down by the jurisdictional High Court is binding on this Tribunal. 3.1 For the period after 01.04.2008, the learned Advocate submitted that the credit availed on GTA services has been allowed on the basis of ascertaining the actual place of removal, depending on the facts and circumstances of each case. The Tribunal in most of the cases, remanded the matter to the original authority to ascertain the place of removal, based on the agreement of sal....
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....d down that the intention of the respective parties to the transaction should be ascertained so as to determine the actual place of removal i.e. at the factory gate or at the customer s premises. Therefore, the place of removal as understood in the context of extending the CENVAT Credit on outward freight, be given a liberal interpretation. 3.5 It is his further contention that the CBEC in its Circular dt.23.08.2007 clearly brought out the aforesaid interpretation of place of removal referring to the ratio laid down in the case of Gujarat Ambuja Cement Vs CCE Ludhiana 2006 (6) STR 249 (Tri-Del). The learned Advocate further submitted that even after insertion of sub-rule (qa) to the definition of input service, the meaning and scope of place of removal continued to carry the same meaning as was earlier borrowed from Section 4(4)(c) of Central Excise Act, 1944. This is evident from the circulars issued by CBEC after the said amendment on 20.10.2014 and thereafter on 28.02.2015. It is his contention that these circulars issued by the Board in explaining the expression place of removal for its application by the public at large cannot be ignored and should be given due importance i....
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....f Section 4 of CEA,1944 by Hon'ble Supreme Court recently in Ispat Industries case, is squarely applicable in understanding and applying its meaning to the expression place of removal employed in the definition of input services under Rule 2(l) of CENVAT Credit Rules 2004. The learned Authorized Representative for the Revenue further submitted that the Hon'ble Supreme Court in Ispat industries case, unambiguously laid down at Para 24 of the said judgment that in any circumstances, buyer s premises cannot be the place of removal and therefore, invariably it is to be the factory premises or the warehouse or other places as mentioned therein, as the case may be. The said interpretation is strictly applicable even to the CENVAT Credit Rules 2004, while considering the eligibility of CENVAT Credit on outward freight upto the place of removal. 7. The learned Authorized Representative for the Revenue further submits that the inclusion or otherwise of the cost of outward freight, in the value of the finished goods, would not make any difference in allowing the credit, if the place of removal cannot be extended beyond the factory premises. In support, he has referred to the decis....
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....t be considered as the place of removal, accordingly, the outward freight charges(GTA Service) cannot fall within the definition of input service, and credit of the service tax paid on the same is not admissible. The said objection is for the period after amendment to the definition of input service w.e.f.01.4.2008. On the admissibility of CENVAT Credit on outward freight service (GTA service) for the period prior to 01.04.2008, both sides have fairly accepted that the issue is no more res integra as settled in the judgments of various High Courts including Hon ble Gujrat High Court in Parth Poly Wooven Pvt. Ltd. s case. 12. Before reverting to the arguments advanced by the respective sides, it is necessary to refer to the definition of input service and place of removal as was in force for the period after 01.04.2008. (l) input service means any service, - (i) used by a provider of [output service] for providing an output service; or (ii) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relatio....
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....old after their clearance from the factory; Also, Rule 5 of the Central Excise Rules was substituted, with effect from 1-3-2003, to read as follows : Rule 5.?Where any excisable goods are sold in the circumstances specified in clause (a) of sub-section (1) of section 4 of the Act except the circumstances in which the excisable goods are sold for delivery at a place other than the place of removal, then the value of such excisable goods shall be deemed to be the transaction value, excluding the cost of transportation from the place of removal upto the place of delivery of such excisable goods. Explanation 1. - Cost of transportation includes - (i) the actual cost of transportation; and (ii) in case where freight is averaged, the cost of transportation calculated in accordance with generally accepted principles of costing. Explanation 2. - For removal of doubts, it is clarified that the cost of transportation from the factory to the place of removal, where the factory is not the place of removal, shall not be excluded for the purposes of determining the value of the excisable goods. 23.?It is clear, therefore, that on and....
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....tled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. That is why all definitions in statutes generally begin with the qualifying words, similar to the words used in the present case, namely unless there is anything repugnant in the subject or context In the case of State Bank of India Vs. Yogendra Kumar AIR 1987 SC 1399 at para 15 their Lordships observed: Repugnancy of a definition arises only when the definition does not agree with the subject or context; any action not in conformity with the definition will not obviously make it repugnant to subject or context of the provision containing the term defined under which such action is purported to have been taken. 16. The CENVAT Credit Rules extends credit of the duty/tax paid on various services incurred in or in relation to manufacture of goods, enumerated under t....
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....he credit of input services is available upto the place of removal. As the definition is now provided in the CCR, wherever Cenvat credit is available upto the place of removal, this definition of place of removal would apply, irrespective of the nature of assessment of duty. (2)?The second associated issue is regarding ascertainment of place of removal. In this regard there are two circulars of the Board namely 37B order no 59/1/2003, dated 3-3-2003 [2003 (153) E.L.T. T7] and Circular No. 97/8/2007, dated 23-8-2007 [2007 (7) S.T.R. C88]. The relevant paragraphs of these two circulars are reproduced below for ease of reference - (i) Circular dated 3-3-2003 : 8.?Thus, it would be essential in each case of removal of excisable goods to determine the point of sale. As per the above two Apex Court decisions this will depend on the terms (or conditions of contract) of the sale. The insurance of the goods during transit will, however, not be the sole consideration to decide the ownership or the point of sale of the goods. (ii) Circular dated 23-8-2007 : 8.2. It is, therefore, clear that for a manufacturer/consignor, the eligibility to avail credit of the service tax p....
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....5)?It may be noted that there are very well laid rules regarding the time when property in goods is transferred from the buyer to the seller in the Sale of Goods Act, 1930 which has been referred at paragraph 17 of the Associated Strips Case (supra ) reproduced below for ease of reference - 17.? Now we are to consider the facts of the present case as to find out when did the transfer of possession of the goods to the buyer occur or when did the property in the goods pass from the seller to the buyer. Is it at the factory gate as claimed by the appellant or is it at the place of the buyer as alleged by the Revenue? In this connection it is necessary to refer to certain provisions of the Sale of Goods Act, 1930. Section 19 of the Sale of Goods Act provides that where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. Intention of the parties are to be ascertained with reference to the terms of the contract, the conduct of the parties and the circumstances of the case. Unless a different intention appears; the rules contained in Sections 20 to 24 ....
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....on of place of removal in the context of Section 4 of Central Excise Act, 1944, the Board has not issued any further circular, restricting the meaning of place of removal in the light of the observations of the Hon'ble Supreme Court. Therefore, the CENVAT Credit of Service Tax paid on outward freight (GTA service) is admissible when the condition of sale of goods puts burden on the manufacturer to deliver the goods at the buyers premises. This Tribunal has come to the same conclusion in Forace Polymers Pvt. Ltd and Birla Corporation Ltd s case(supra). Further, I do not find merit in the contention that inclusion of element of freight in the assessable value or otherwise in any manner be a relevant factor for considering the eligibility of Cenvat Credit on outward freight (GTA service) for transporting the goods by the manufacturer from the factory to the premises of the buyer in view of the judgment of the Hon ble Supreme Court in the case of Maruti Suzuki Ltd. Vs. C.C.E., Delhi III 2009 (240) ELT 641 (SC) and the decision of the Hon ble Bombay High Court in the case of C.C.E., Nagpur vs. Ultratech Cement Ltd. 2010 (20) STR 5(Bom.). 18. In most of these appeals, no specific ....