Custom, Excise & Service Tax Tribunal
M/S.Godwari Power & Ispat Ltd vs Cce, Raipur on 1 December, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Court No.III
Appeal No.E/742/2007-EX(DB)
(Arising out of OIA No.06(ST) RPR-I/2007 dt.19.2.07 passed by the CCE(Appeals), Raipur)
Date of Hearing/Decision 01.12.2015
For approval & Signature:
Honble Smt.Sulekha Beevi C.S., Member (Judicial)
Honble Mr.B.Ravichandran, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordships wish to see the fair copy of the order?
seen
4.
Whether order is to be circulated to the Department Authorities?
yes
M/s.Godwari Power & Ispat Ltd. Appellant
Vs.
CCE, Raipur Respondent
Appearance:
Present for the Appellant: Ms.Surbhi Sinha, Advocate Present for the Respondent: Shri Govind Dixit, AR Coram: Honble Smt.Sulekha Beevi C.S., Member (Judicial) Honble Mr.B.Ravichandran, Member (Technical) Final Order No.53690/2015 Per: Sulekha Beevi C.S. The appellant challenges the impugned order which disallowed the cenvat credit.
2. The appellants who are manufacturer of excisable goods are also recipients and providers of taxable service viz. transport of goods by goods Transport Agency by road. They are liable to pay service tax for GTA services. They paid service tax through TR-6 challan and took cenvat credit on the strength of such challans. A show cause notice dated 7.4.2006 was issued raising two allegations (i) that TR-6 challan are not valid documents to avail cenvat credit (ii) that credit is not admissible on the freight paid for outward transportation of goods.
3. The first issue for consideration is whether TR-6 challans are valid documents for availing cenvat credit. The period involved is from 30.3.2005 to 15.6.2005. The Commissioner (Appeals) in para 7 of the impugned order observes that TR-6 challan is prescribed as valid document in terms of Notification No.28/2005-CE (NT) dated 7.6.2005 w.e.f.15.6.2006 by virtue of amendment in Rule 9 (1) (e) of the Cenvat Credit Rules, 2004. Since the period in the present case is prior to the amendment, the authorities below have disallowed the credit. The learned counsel appearing on behalf of the appellant Ms.Surbhi Sinha submitted that the issue is covered by CESTAT judgement in the case of Gaurav Krishna Ispat (I) Pvt.Ltd. vs. CCE, Raipur 2009 (13) STR 629 (Tri.-Del.). In the said case, the Tribunal has held the issue in favour of the assessee following the decision laid in CCE vs. Essel Propack Ltd.-2007 (8) STR 609 (Tri.). The above judgements are applicable to the present case and we hold that disallowance of credit on this ground is unjustified.
4. The second ground for denial of credit is that the service tax paid on GTA services for outward transportation of goods beyond the place of removal i.e. the factory gate does not qualify as input service, even though the transportation is on FOR basis. We cannot accede to this view taken by the Commissioner (Appeals). The appellants have stated in their reply to the show cause notice that the outward transportation is made on F.O.R. basis. Thus the freight became part of assessable value and therefore these services will safely fall within the definition of input services. The issue stands covered by the judgement of the Honble High Court of Gujarat in CCE & Cus vs. Parth Poly Wooven Pvt.Ltd.-2012 (25) STR 4 (Guj.) where it was held that when the fact that goods were transported on F.O.R.basis, is not disputed by the department, the denial of credit on the service tax paid on GTA services is not justifiable. Following the ratio laid in the above judgement, we hold that the second issue in favour of the appellant.
5. In the result, the impugned order is set aside and appeal is allowed.
(pronounced in open court) (B.Ravichandran) (Sulekha Beevi C.S) Member (Technical) Member (Judicial) mk 3