TaxTMI 
TaxTMI 
2019 (1) TMI 170
X X X X Extracts X X X X
X X X X Extracts X X X X
....he issue involved in both the appeal is identical and there is a common impugned order, both the appeals are being taken up for discussion and disposal. 2. The details of both the appeals are given herein below: Sl. No. Appeal No. E/20383/2018 E/20390/2018 1 Impugned Period 01.04.2012 to 31.03.2013 01.05.2013 to 28.02.2015 2 Date of Show-cause notice 30.4.2013 04.09.2015 3 Order-in-Original No. & Date 19/2014/CE dt. 02.06.2014 No.06/2015-CE dt.28.12.2015 4 Order-in-Appeal No. & Date COC-EXCUS-000-APP-260 & 261 - 2017 dt. 20.11.2017 5 CENVAT Credit denied Rs.15,39,628/- Rs.24,45,027/- 6 Penalty Imposed Rs.4,00,00/- Rs.24,450/- 3. Briefly the fact....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... duty is not paid on freight and insurance component even though the same is recovered from the customer. The appellant also receives transportation services from GTA service provider for transportation of goods to the customer's premises and discharges service tax under reverse charge basis. The appellant is availing the credit of the taxes paid on the aforementioned GTA services to the extent the said services are used for transportation of the goods to the customer's premises in terms of the contract entered into with such customers. The department entertained a view that in view of the Circular dated 23.8.2007, since the outward freight charges do not form an integral part of the price of the goods, the appellant is not eligible to avai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ded to allow the availment of credit subject to inclusion of value of such input in the assessable value for payment of excise duty, it has done so by specifically providing for it. Learned counsel thereafter referred to the Circular No.97/8/2007-ST dated 23.8.2007 which notes the decision in the case of Gujarat Ambuja: 2007 (6) STR 249 (Tri.-Del.) and Ultratech Cement: 2007 (6) STR 364 (Tri.-Ahmd.) holding that credit on GTA service would be eligible only up to the place of removal and not beyond that. He further submitted that this Circular clarifies that for the determination of the phrase 'place of removal', facts of each individual case need to be taken into account. He also submitted that the circular clarifies that in cases where an ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ble goods. He further submitted that after the decision of the apex court in the case of Ultratech Cement Ltd.: 2018 (9) GSTL 337 (SC), the CBEC has issued a detailed Circular dated 8.6.2018 and provides clarification on the implementation of the decision of the apex court. He further submitted that it is no longer in dispute that the credit of input service is available only "upto the place of removal" and not beyond it but the determination of 'place of removal' can only be done in the facts of each case. The 2018 circular read with decision of the Hon'ble Supreme Court of Roofit Industries Ltd. (supra) and Emco Ltd. (supra) provides guidance on how in a FOR transaction the premises of the buyer would be place of removal. He further submi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he statutory provisions and they are not binding upon the Courts. It is for the Court to declare what the particular provision of statute says and it is not for the executive. Looked it from another angle, circular which is contrary to statutory provision has really no existence in law. 7. After considering the submissions of both the parties and perusal of the material on record and the various decisions relied upon by both the parties, I find that the appellants as per the contracts entered into with their customers, they are supplying the goods on FOR basis and are availing the credit of the service tax paid on the GTA services to the extent that such services are used for transportation of goods to the customer premises. As per the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Act, there is no quarrel upto this stage. However, the important aspect of the matter is that Cenvat Credit is permissible in respect of 'input service' and the Circular relates to the unamended regime. Therefore, it cannot be applied after amendment in the definition of 'input service' which brought about a total change. Now, the definition of 'place of removal' and the conditions which are to be satisfied have to be in the context of 'upto' the place of removal. It is this amendment which has made the entire difference. That aspect is not dealt with in the said Board's circular, nor it could be. 12. Secondly, if such a circular is made applicable even in respect of post amendment cases, it would be violative of Rule 2(l) of Rules, 200....