Customs, Excise and Gold Tribunal - Tamil Nadu
Hyundai Motors (India) Ltd. vs Commissioner Of C. Ex. on 28 January, 2008
ORDER P.G. Chacko, Member (J)
1. After examining the records and hearing both sides, we note that the appellants were availing Cenvat credit on inputs, capital goods and input services for the purpose of payment of duty on their final products (Motor cars and parts thereof). During the period May '06 to January' 07, they availed Cenvat credit of over Rs. 1 crore on Goods Transport Agency Service (GTA Service), CHA service and wharfage incurred for transporting their final product from factory to port or incurred in relation to clearance of the goods at the port or in relation to wharfing of the goods, as the case may be. In the impugned order, ld. Commissioner did not allow the above credit, by holding that the above services received by the assessee for removal of goods from factory cannot be treated as input services. On the other hand, the assessee has taken the view that the 'place of removal' as defined under Section 4(3)(c) of the Central Excise Act, in their case, was the port inasmuch as that was the place from which the goods were transferred (after clearance from factory) for the purpose of sale. Ld. Counsel seeks to support this case of the assessee by relying on a circular of the Board vide para 11.2 of CBEC Circular dated 23-8-2007. He also relies on a Stay Order of the Tribunal reported in 2007 (8) S.T.R. 575 (Tri.-Del.). Reliance is also placed on a stay order passed by this Bench, wherein, in view of pendency of the issue before Larger Bench 2007 (8) S.T.R. 43 (Tri.) : 2007 (216) E.L.T. 81 (Tri.), waiver and stay were granted. Ld. SDR has claimed support from our decision in India Japan Lighting Pvt. Ltd. v. CCE, Chennai 2007 (8) S.T.R. 124 (Tribunal) : 2007 (218) E.L.T. 103 (Tri.-Chennai), wherein outward transportation of final products from place of removal, being activity posterior to clearance, was held not to be Cenvatable service. It is pointed out by ld. Counsel that the appeal filed by M/s. India Japan Lighting Pvt. Ltd. is pending before the Hon'ble High Court, albeit without stay.
2. After considering the Board's clarification, we think that, prima facie, the appellants' case cannot be rebutted by SDR. Our decision in India Japan Lighting case appears to have been deprived of finality on account of the assessee's appeal thereagainst having been admitted by Hon'ble High Court. It also appears that the issue is pending before Larger Bench consequent upon a reference by South Zonal Bench, Bangalore.
3. In the circumstances, there will waiver of pre-deposit and stay of recovery in respect of the amounts of service tax and penalties.
(Dictated and pronounced in open Court)