Custom, Excise & Service Tax Tribunal
M/S. Pooja Forge Lab vs C.C.E. Faridabad on 4 October, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Service Tax Appeal No. 779 of 2011 SM
Date of Hearing/ decision: 4.10.2012
[Arising out of Order-in-Appeal No. 10/CE/APPL/DLH-IV/ 2011 dated 18.2.2011 passed by the Commissioner of Central Excise (Appeals ), Faridabad ]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 : No
of the CESTAT (Procedure) Rules, 1982 for
publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair : Seen
copy of the Order?
4. Whether Order is to be circulated to the : Yes
Departmental authorities?
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M/s. Pooja Forge Lab
Applicant
Vs
C.C.E. Faridabad
Respondent
Appearance:
Ms. Neha Gulati , Advocate for the Appellants
Shri Bharat Bhushan, DR for the Respondent
CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
ORAL ORDER NO . ________________________
Per Archana Wadhwa ( for the Bench):
After hearing both sides, I find that appellant is engaged in the manufacture of nuts and bolts, wire equipment etc. and they entered into FOR contract with their customers. As such, the transporation of the said goods is the responsibility of the appellant. They are undertaking the same, paying Service Tax on the said GTA services so availed by them and are taking credit of the same.
2. The dispute in the present appeal relates to the availment of credit of Service Tax so paid by the appellant on the GTA services. Revenue by entertaining a view that with the amendment in the definition of inputs services with effect from 1.4.08 replacing the expression clearance from the place of removal to clearance up to place of removal, the assessee is not entitled to avail the credit. Accordingly, proceedings were initiated culminating into passing of impugned order confirming denial of Cenvat credit and imposition of penalties.
3. It is seen that appellant took a categorical stand before the lower authorities that their sales are on FOR basis and as such place of removal is not their factory but gets extended to the buyers premises. In support of the above contention, they produced on record the purchase order as also the invoices. To substantiate the above stand, they also produced on record Chartered Accountants certificate indicating that the said sales are on FOR basis and relied upon the Punjab and Haryana High Court decision in the case of Ambuja Cements Ltd. vs. Union of India reported as [2009 (236) ELT 431 (P&H)] where the Boards circular of 2007 was examined. Assessee contended before the lower authorities that they are fulfilling all the three conditions of said Circular and as such are entitled to the benefit of Cenvat credit of Service Tax paid on the GTA services. Para 5, 12, 13 and 14 of the said decisions of Punjab and Haryana High Court is reproduced below:-
5.?He has then argued that Boards Circular No. 97/6/2007-ST, dated 23-8-2007, which has been issued in pursuance to the order passed by the Tribunal has clarified the issue as to up to which stage a manufacturer or consigner take benefit of tax on goods sent by transport (A). He has drawn our attention to para 8.2 of the Boards circular which lay down the requirement of fulfilling three conditions, namely, (a) the ownership of goods and the property of the goods remained with the seller of the goods till the delivery of goods in acceptable condition to the purchaser at his door step; (b) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (c) the freight charges were an integral part of the price of goods. According to the learned counsel the property in the goods was never transferred to the purchaser and remained with the seller i.e. assessee till the delivery of goods to the purchaser at his door steps. He has also emphasized that the assessee had taken an insurance cover bearing the risk of loss or damage to the goods during transit to the destination and that the freight charges were an integral part of the price of the goods. Learned counsel has maintained that once all these conditions are fulfilled then it is well settled that the revenue is bound by the circular issued by it. He has placed reliance on a judgment of Honble the Supreme Court rendered in the case of Paper Products Ltd. v. Commissioner of Central Excise, 1999 (112) E.L.T. 765 (S.C.) = (1999) 7 SCC 84. While concluding his submissions learned counsel has prayed that both the questions which have emerged from the order of the Tribunal deserved to be answered in favour of the assessee and against the revenue.
12.?The input service has been defined to mean any service used by the manufacturer whether directly or indirectly and also includes, inter alia, services used in relation to inward transportation of inputs or export goods and outward transportation up to the place of removal. It has also remain un-controverted that for transportation purposes insurance cover has also been taken by the appellant which further shows that the ownership of the goods and the property in the goods has not been transferred to the seller till the delivery of the goods in acceptable condition to the purchaser at his door step. Accordingly, even the second condition that the seller has to bear the risk of loss or damage to the goods during transit to the destination stand fulfilled.
13.?The third condition that the freight charges were integral part of the excisable goods also stand fulfilled as the delivery of the goods is FOR destination price. This aspect has been specifically pointed out in para 2.2 of the reply dated 12-4-2006 given to the show cause notice. Therefore, we are of the view that the first question is liable to be answered in favour of the assessee and against the revenue.
14.?Once the first question has been answered in favour of the assessee and against the revenue then it is evident that there is no contravention and violation of any of the provisions of law and the credit has been lawfully availed. Therefore the allegation concerning not availing the service within the meaning of input service and irregular availment of credit could not be sustained. Then the question of payment of interest does not arise and the answer to the second question consequently would be against the revenue and in favour of the assessee.
4. The appellate authority have examined the appellants case. And has in categorical terms accepted that the purchase orders were on FOR basis and as such place of delivery is the buyers premises. However, he has gone through and examined the Chartered Accountants certificate and has observed that inasmuch as the said certificate has not given details of the cost of raw materials, the manufacturing cost or/and other pre manufacturing and post manufacturing expenses and other overhead expenses charges etc., same cannot be accepted.
5. I find no justifiable reasons to uphold the finding of the lower authorities. Admittedly, the Chartered Accountants certificate to the effect that sale is on FOR basis and all expenses incurred upto the buyers premises form part of the cost of final product. Commissioner (Appeals) has also held in favour of the appellant, when he observed that the purchase orders are on FOR basis and it is the appellant who has to bear the freight and insurance by arranging transportation of the goods. It is also not the Revenues case that anything more than what has been reflected in the invoices as the cost of goods, stands recovered by the appellant from their buyers in the name of freight and insurance. If that be so, all the expenses incurred up to the buyers premises, which are also reflected in the invoices and adopted by the appellant as an assessable value. I have also seen the invoices raised by the appellants indicating the cost of goods. There is no separate realisation towards freight and insurances. It is also not the revenues case that freight and insurance is being charged /collected by the appellant separately. In these circumstances, in view of the decisions of Honble Punjab and Haryana High Court read with Boards Circular it has to be held that appellants were the owners of the goods upto the place of delivery that is the buyers premises and as such the GTA services so availed by them are to be treated as inputs services. If that be so, they are entitled to avail the credit of the same.
6. In view of the above, I set aside the impugned order and allow the appeal with consequential relief to the appellant.
(Pronounced in the open court)
( Archana Wadhwa ) Member(Judicial)
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