AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 127
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....ger cars/excisable goods falling under Chapter 87 of the First Schedule of Central Excise Tariff Act 1985 and is a duly registered LTU. The appellant is availing cenvat credit of duty paid on input services, inputs and capital goods under Cenvat Credit Rules, 2004. During the course of the audit of the records of TKML, it was noticed that they were dispatching parts of Motor Vehicles through Courier to their Dealers and have availed cenvat credit of Rs. 42,26,553/- (Rupees Forty Two Lakhs Twenty Six Thousand Five Hundred and Fifty Three only) on Outward Courier Bills for the period from April 2009 to March 2012. It appeared that the Outward Courier Service is not covered by the definition of "input service" as per Rule 2(l) of Cenvat Credi....
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....ts and the auto-parts are subjected to Central Excise duty on MRP basis under Section 4A of Central Excise Act. He also submitted that MRP of auto-parts includes the expenditure on courier transportation and therefore the credit is available to the appellant since it is part of the expenditure irrespective of the fact whether the place of removal is a factory gate or a customer premises. He further submitted that there is no suppression of fact and no malafide intention to evade payment of duty and therefore the extended period has wrongly been invoked. In support of his submission, he relied upon the following decisions: a. Escorts Ltd. Vs. CCE, Delhi - 2004 (171) E.L.T. 145 (S.C) b. Hero Motocorp Ltd. Vs. CCE, Delhi-III - 2014 (36) S.....
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.... service' as provided under Rule 2(l) of Cenvat Credit Rules 2004. He also submitted that the Commissioner (Appeals) has categorically held that the factory gate is the place of removal and the cenvat credit of service tax paid on service from the factory gate would not be available. The Commissioner (Appeals) has followed the decision of the Tribunal in the case of Hero Motocorp Ltd. cited supra wherein it has been held that final product if being cleared either under specific rate of duty or in terms of MRP declaration as per Section 4A of the Central Excise Act 1944, the 'place of removal' would be the factory gate and the credit of service tax paid on courier service from the factory gate is not available under Rule 3 of Cenvat Credit R....
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....dated 2-2-2006 clarifying that the definition of 'place of removal' as given in Section 4(3)(c) is to be adopted for the purpose of Cenvat Credit Rules, 2004 even in cases when the final products are chargeable to duty at specific rate on at ad valorem rate on value determined under Section 4A, is contrary to the provisions of law. In fact, the view that the issue of valuation and the issue of Cenvat Credit on inputs/input service are two independent issues having no connection, is not a correct view and the same has not even been affirmed by Hon'ble Karnataka High Court in its judgment reported in 2011 (23) S.T.R. 97 (Kar.). In the case of LG Electronics Ltd. (Supra) cited by the learned counsel for the Appellant, the Tribunal had simply r....
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....lief was founded on the basis of various judicial decisions of the High Court and the Tribunal. Further the entire issue relates to interpretation of statutory provisions particularly the 'input service' definition in Rule 2(l) of the Cenvat Credit Rules 2004. Further I find that in the Tribunal decision in the case of Hero Motocorp Ltd. cited supra on which the learned Commissioner (Appeals) has placed reliance it has been held that the Department cannot allege suppression of facts with intent to evade payment of duty and that the demands were held to be time-barred inasmuch as the extended time period could not be invoked. I find that this aspect has been completely ignored by both the authorities. In the present case, the period of dispu....