TaxTMI 
TaxTMI 
2024 (2) TMI 250
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....otest. 1.1 The Appellant was issued a show cause notice dated 02.12.2009 demanding the wrongly availed CENVAT credit of service tax paid on GTA services under RCM for the period January 2005 to June 2007. The said demand of the wrongly availed CENVAT credit was confirmed by the adjudicating authority, which was upheld by the Commissioner (Appeals). This Tribunal, vide its Order dated 06.01.2020, remanded the proceedings to the adjudicating authority for fresh adjudication. The remand proceedings were also concluded by denying and confirming the demand of the said credit by both the lower authorities. The present appeal is against the Order of the Commissioner (Appeals) rejecting the Appellant's appeal against the demand of the wrongly availed credit. 2. Shri Prakash Shah along with Shri Mohit Raval, Advocates for the Appellant submit that the Appellant availed the GTA services for outward transportation of the final products on which the service tax is paid under RCM by the Appellant and since the said services are availed for transporting goods from the factory to the customer's premise, the said service qualify as 'input service' and CENVAT credit of same is admissible to the A....
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....redit on the GTA services availed for outward transportation of goods manufactured by the Appellant from their factory gate till customers premises. The Appellant is clearing the manufactured goods at ex-factory price and provides additional service of delivering the said goods to customers premise, for which the Appellant is availing GTA services and service tax on such services was paid under RCM. The definition of 'input service' as it stood prior to and after 1.4.2008 is reproduced as under: "Prior to 01.04.2008: (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal, and includes.............. W.e.f. 01.04.2008: (i) used by a provider of taxable service for providing an output service; or (ii) used by the 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..............' From the above definition, it can be seen that prior to 1.4.2008, in sub-clause ....
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....esaid amendment, the Cenvat credit is available only upto the place of removal whereas as per the amended Rule from the place of removal which has to be upto either the place of depot or the place of customer, as the case may be. This aspect has also been noted by the High Court in the impugned judgment in the following manner : "However, the interpretation placed by us on the words "clearance of final products from the place of removal' and the subsequent amendment by Notification 10/2008-C.E. (N.T.), dated 1-3-2008 substituting the word "from' in the said phrase in place of "upto' makes it clear that transportation charges were included in the phrase "clearance from the place of removal' upto the date of the said substitution and it cannot be included within the phrase "activities relating to business'.' 9. In view of the aforesaid discussion we hold that the appeals are bereft of any merit and are accordingly dismissed.' 8. In Commissioner v. Parth Poly WoovenPvt. Ltd., 2012 (25) S.T.R. 4 (Guj.), the Hon'ble Gujarat High Court held thus: "18. Bearing in mind the above judicial pronouncements, if we revert back to the definition of the term "input service', as already noti....
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....ST & C. Ex., Vadodara-II Vs. Gujarat Guardian Limited, 2018 (12) G.S.T.L. 300 (Guj.), the Hon'ble Gujarat High Court held thus: "2. It is not in dispute that the issues arising in the present Tax Appeal are squarely covered by the judgment in case of Commissioner of C. Ex. & Customs v. Parth Poly WoovenPvt. Ltd. reported in 2012 (25) S.T.R. 4 in which it was observed as under: 18. Bearing in mind the above judicial pronouncements, if we revert back to the definition of the term "input service', as already noticed, it is coined in the phraseology of "means and includes'. Portion of the definition which goes with the expression means, is any service used by the manufacturer whether directly or indirectly in or in relation to the manufacture of final products and clearance of final products from the place of removal. This definition itself is wide in its expression and includes large number of services used by the manufacturer. Such service may have been used either directly or even indirectly. To qualify for input service, such service should have been used for the manufacture of the final products or in relation to manufacture of final product or even in clearance of the final p....
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....ng any service directly or indirectly in or in relation to manufacture of final product or clearance of final product from the place of removal, no interpretation of the later part of the definition would permit us to exclude such a service from the sweep of the definition. Secondly, we notice that the definition of the term "input service' came to be amended with effect from 1-4-2008 and instead of words "clearance of final products from the place of removal', the words "clearance of final products upto the place of removal' came to be substituted. What would be the position if the case had arisen after 1-4-2008 is a situation we are not confronted with. We, therefore, refrain from making any observations in this regard. We, however, cannot help noticing the change in the statutory provisions which is at the heart of the entire controversy. Insofar as the cases on hand are concerned, the statutory provisions cover the service used by the manufacturer in relation to the manufacture of the final products or even the clearance of final products from the place of removal. 22. Be that as it may, we are of the opinion that the outward transport service used by the manufacturer for tra....
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....nclusion of the cost of transportation in the assessable value of the goods cleared by the Appellant, we find that this very issue was considered by the Larger Bench's in the case of ABB Limited - 2009 (15) STR 23 (Tri.-LB), which was ultimately upheld by the Hon'ble Supreme Court in case of Vasavdatta (Supra), and in which it is held as under: "18. For admissibility to credit for outward transportation there is no requirement that the cost of freight should enter into the transaction value of the manufactured goods. According to the department, since the cost of outward transportation does not form part of the transaction value of the manufactured goods as defined in Section 4 of the Central Excise Act, 1944, any service tax paid for the outward transportation of goods from place of removal cannot be allowed as credit to the manufacturer, although, the question of denial of credit does not arise if the cost of freight is included in the transaction value. However, this stand is not tenable. In other words, credit is not to be automatically disallowed in those cases where the freight cost does not form part of the transaction value............. ........................ 22. Th....