Custom, Excise & Service Tax Tribunal
Cce, Hyderabad-Iii vs M/S. Penna Cement Industries Ltd on 28 October, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench SMB Court I Appeal No.E/26174/2013 (Arising out of Order-in-Appeal No.93/2012 (H-III)(D)CE dt. 28/12/2012 passed by CC,CE&ST(Appeals-III), Hyderabad) For approval and signature: Honble Ms. Sulekha Beevi, C.S., Member(Judicial) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? CCE, Hyderabad-III ..Appellant(s) Vs. M/s. Penna Cement Industries Ltd. ..Respondent(s)
Appearance Shri P.S. Reddy, Asst. Commissioner(AR) for the appellant.
None for the respondent.
Coram:
Honble Ms. Sulekha Beevi, C.S., Member(Judicial) Date of Hearing:28/10/2016 Date of decision:28/10/2016 FINAL ORDER No._______________________ [Order per: Sulekha Beevi, C.S.] The appeal is filed by the Department against the order of the Commissioner(Appeals) who set aside the penalty imposed. The issue involved is whether the appellants are eligible for credit of service tax paid on outward transportation to the place of buyers.
2. The adjudicating authority as well as the Commissioner(Appeals) have held that the respondent is not eligible to avail CENVAT credit of service tax paid on freight of outward transportation of goods from factory gate to buyers premises for the reason that it is stated in the purchase order that once goods are loaded into vehicle, the responsibility of goods shifts upon the carrier. The learned AR defended the findings of impugned order with regard to the demand and interest and submitted that the Commissioner(Appeals) has erred in setting aside the penalty. The issue whether the credit of service tax is eligible for outward transportation upto the buyers premises was contentious during the period. There were decisions in favour of the Revenue as well as in favour of the assessee. The issue has been settled by the Honble High Court of Punjab & Haryana in the case of Ambuja Cements Ltd. Vs. UOI [2009(14) STR 3 (P&H)] wherein it was held if the freight charges form part of the value of goods and sales is on FOR destination, credit is admissible. The Board vide its circular No.97/8/2007-ST dt. 23/08/2007 has also clarified the same. The issue during the relevant period being contentious one, the Commissioner(Appeals), in my view, has rightly set aside the penalty. The issue being contentious one during the period, I hold that the penalty is rightly set aside by lower authority. Appeal filed by the Department is dismissed.
(Pronounced and dictated in open court) SULEKHA BEEVI C.S. MEMBER(JUDICIAL) Raja.
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