2018 (7) TMI 99

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....sed in view of Section 78 of the Central Excise Act, 1944. The factual matrix relevant for the purpose is as follows: 1. The Appellant is engaged in the manufacture of excisable goods falling under Chapter 34 of Central Excise Tariff Act, 1985. It is also availing Cenvat Credit facility on inputs, capital goods and input services under the provisions of Cenvat Credit Rules, 2004. However, during the course of audit of records of the Appellant for the period 2011-12 and 2014-15, the Appellant was found to have availed the Cenvat Credit of the impugned value on outward freight paid beyond the place of removal of input services. Accordingly, a Show Cause Notice No. 11/ST/Audit-I/IND/AC/2016 dated 20.01.2016 was served upon the Appellant. 2. ....

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....s of the order 2016. There is no condition in the present case which entitles the Revenue to invoke the extended period of five years as enshrined under Section 78 of the Act. The order is, accordingly, prayed to be set aside. The demand being barred by time, appeal is allowed. 4. While rebutting these arguments, learned D.R. has relied upon the position of the Hon'ble Supreme Court in the case of Commissioner of Central Excise & Service Tax vs. Ultratech Cement, 2018 (9) GSTL 337 (SC) to impress upon that the Apex Court has settled that the goods transport agency service used for the purpose of outward transportation of goods from the factory to the customer's premises is not an input service. Hence, the Cenvat Credit claimed against such....

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....ctory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, shortage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal;" 7. It may be relevant to point out here that the original definition of 'input service' contained in Rule 2(l) of the Rules, 2004 used the expression 'from the place of removal'. As per the said definition, service used by the manufacturer of....

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....well as tax paid on services, used in or in relation to the manufacture of the 'final product'. The final products, manufactured by the assessee in their factory premises and once the final products are fully manufactured and cleared from the factory premises, the question of utilization of service does not arise as such services cannot be considered as used in relation to the manufacture of the final product. Therefore, extending the credit beyond the point of removal of the final product on payment of duty would be contrary to the scheme of Cenvat Credit Rules. The main clause in the definition states that the service in regard to which credit of tax is sought, should be used in or in relation to clearance of the final products from the p....