TaxTMI 
TaxTMI 
2023 (11) TMI 826
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....uary 2008 proposing to disallow the credit and to recover the same along with interest and for imposing penalty under Rule 15 (3) of CENVAT Credit Rules 2004. After due process of law, the original authority confirmed the demand, interest and imposed penalty. On appeal, the Commissioner (Appeals) upheld the same. Hence this appeal. 2. The learned consultant Shri R. Parthasarathy appeared and argued for the appellant. It is pointed out by the learned consultant that with effect from 1/4/2008 there was a change in the definition of 'input services' and the words "from the place of removal" was amended as "up to the place of removal". The issue stands covered by the decision in the appellant's own case vide Final order no. 40174/40176/2022 dated 18/5/2022 wherein the Tribunal has relied upon the decision of the Hon'ble Supreme Court in the case of M/s. Vasavadatta Cements Ltd. 2018 (11) GSTL 3 (S.C). It is prayed that the appeal may be allowed. 3. The learned AR Shri Satyanarayanan appeared for the department and supported findings in the impugned order. 4. Heard both sides. 5. The issue is whether the appellant is eligible for the credit of service tax paid on outward transportat....
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....indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal, will fall within the definition of input service. 9. After 1.4.2008, the definition has been amended so that any service used for clearance of final products upto the place of removal will fall within the definition of input service. The department has taken a view that outward transportation of the goods is a post-sale expenditure and thus is an activity after manufacture. That therefore the credit in relation to the outward transportation of finished products upto the buyers' premises / dealer's premises is not eligible. In all these appeals the period of dispute is prior to 1.4.2008. 10. The Hon'ble Supreme Court in the case of M/s. Vasavadatta Cements Ltd. (supra) had considered the very same issue and held that the expression used in the definition is "from the place of removal". It has to be from the place of removal upto a certain point. Therefore, tax paid on the transportation of the final products from the place of removal upto the that point whether it is depot or the customers' premises has to be allowed. It was further held that the amen....
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....ts Ltd. (supra) and The Andhra Sugars Ltd. 9supra) and held that the credit is eligible. The relevant portion of the order is reproduced as under:- "19. To arrive at the correct conclusion, the Adjudicating Authority should have taken note of the decision of the Hon'ble Supreme Court in the case of CCE, Belgaum v. Vasavadatta Cements Ltd. [reported in (2018) 52 GSTR 232 = 2018 (11) G.S.T.L. 3 (S.C.)]. The issue, which fell for consideration before the Hon'ble Supreme Court was as to what interpretation has to be given to input services, which is defined in Rule 2(l) of the CCR. The appeals before the Hon'ble Supreme Court all related to a period prior to 1-4-2008 and the said Rule stood amended with effect from 1-4-2008. The principles laid down by the Hon'ble Supreme Court in the said decision could be summarized as follows : "The expression used in Rule 2(l) of the Cenvat Credit Rules, 2004 is 'from the place or removal'. It has to be from the place of removal upto a certain point. Therefore, Cenvat credit of Service Tax paid on goods transport agency service availed of for transport of final product from the place of removal upto the first point, whether it is a depot or th....
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....he customer's premises was disallowed, as it was found that the factory gate is to be determined as the 'place of removal'. Therefore, the larger question would be as to whether the assessee would have been non-suited based on the decision in the case of Ultra Tech Cement Ltd. In our considered view, the assessee should not be non-suited in the light of the said decision for more than one reason. 22. Firstly, the modus operandi of the assessee requires to be examined by the Adjudicating Authority i.e. establishment of the RDCs and the WSDCs. The assessee's specific case is that the point of sale in their case is the RDCs. However, this issue has not been examined by the Adjudicating Authority in the manner it was required to be examined. We say so because the Adjudicating Authority is the First Authority, who will record the findings of fact. Therefore, before the legal position is applied, a thorough exposition of the facts needs to be done. Then, law is to be applied to the facts of the case and not vice versa. 23. One more reason, which weighs in our mind, is to state that the Adjudicating Authority could have examined the factual background on account of a decision of the....