Custom, Excise & Service Tax Tribunal
Bhilai Engineering Corpn. Ltd vs C.C.E. & Customs, Raipur on 24 May, 2011
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-I Date of hearing/decision:24.5.2011 Central Excise Appeal No.2859 of 2007-SM Arising out of the order in appeal No.95/RPR-II/2007 dated 6.6.2007 passed by the Commissioner (Appeals), Central Excise & Customs, Raipur(C.G.). For Approval and Signature Honble Shri Justice R.M.S. Khandeparkar, President 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Bhilai Engineering Corpn. Ltd. .. Appellant Vs. C.C.E. & Customs, Raipur .. Respondent
Appearance:
Shri S. Yadav, Advocate for the appellant Shri K.P. Singh, Authorised Departmental Representative (DR) for the respondent Coram: Honble Shri Justice R.M.S. Khandeparkar, President Oral Order No.____________________ Per Shri Justice R.M.S. Khandeparkar:
Heard the Advocate for the appellants and the DR for the respondent. This appeal arises from the order dated 6.6.2007 passed by the Commissioner (Appeals), Raipur. By the impugned order the Commissioner (Appeals) set aside the order passed by the Deputy Commissioner, Bhilai on 29.1.2007. By the said order, the Deputy Commissioner, Bhilai had allowed the credit in relation to the outward freight services on the ground that outward freight was paid in relation to the removal of the goods from the place i.e. at the factory gate of the manufacturer. The Commissioner (Appeals) while observing that the issue is no more res integra as the Tribunal in the matter of Gujarat Ambuja Cement Ltd. vs. C.C.E., Ludhiana reported in 2007 (6) STR 249 has held that the credit of service tax paid on outward transportation was available and yet set aside the order of the adjudicating authority and disallowed the said credit and, therefore, the same is sought to be challenged by this appeal.
2. Learned Advocate appearing for the appellants while assailing the impugned order submitted that though in para 10, the lower appellate authority held that the Tribunal has held in Gujarat Ambuja Cement Ltd. case that credit of service tax paid on outward transportation is available, proceeded to hold that the appellant wrongly availed the credit on outward transportation. The DR on the other hand submitted that bearing in mind the Circular No.97/8/2007-ST dated 23.8.2007 issued by the Board unless conditions specified under clause 8(1(c) of the said Circular are satisfied, the appellants are not entitled to claim the benefit of such credit.
3. Perusal of the order passed by the lower authority discloses a clear finding to the effect that there is no dispute on the fact that the said outward freight was paid in relation to removal of goods from the place of removal, as the noticees are manufacturer of the goods and the said output services are used by them for clearance of final product from their factory. As such, I find that the said credit relates to input service for the noticee and hence the same is correctly availed by them.
4. Undisputedly, the said finding of fact that the credit availed was in relation to the services rendered up to the stage of removal of goods at factory gate was not disputed by the Department, it was not permissible for the Commissioner (Appeals) to deny the credit to the appellants. On this ground alone, the impugned order cannot be sustained and is liable to be set aside and is accordingly hereby set aside, allowing the credit in relation to the output service which was granted by the adjudicating authority. Ordered accordingly. The appeal stands disposed of.
(Justice R.M.S. Khandeparkar) President scd/