Custom, Excise & Service Tax Tribunal
Cce, Jaipur-I vs M/S Hi-Tech Gears Ltd on 3 August, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Date of Hearing : 3.8.2011 Service Tax Appeal No. 773-774 of 2007 [Arising out of the Order-in-Appeal No. 301-302(RKS)CE/JPR-I/2007 dated 9.10.2007 passed by the Commissioner (Appeals), Central Excise, Jaipur] Coram: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Mathew John, 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? 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Whether their Lordships wish to see the fair copy of the order? 4. Whether order is to be circulated to the Department Authorities? CCE, Jaipur-I Appellant Vs. M/s Hi-Tech Gears Ltd. Respondent
Appearance:
Appeared for Appellant : Shri R.K. Gupta, SDR
Appeared for Respondent : Shri P.M. Panwar, Advocate
CORAM: Honble Ms. Archana Wadhwa, Member (Judicial)
Honble Shri Mathew John, Member (Technical)
Order No.dated.
Per Archana Wadhwa :
Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeal.
2. We have heard Shri R.K. Gupta, ld. SDR for Revenue and Shri P.M. Panwar, ld. Advocate for the respondent.
3. The issue involved is admissibility of input credit of service tax paid on the outward transportation of the goods from the factory gate to the place of removal. Commissioner (Appeals) have granted relief to the respondent by observing as under :-
It is, therefore, clear that for the appellant the eligibility to avail credit of the service tax paid on outward transportation for removal of excisable goods would depend upon the determination of the place of removal as per the definition. I observe that the goods after clearance from the factory of the appellant remained in their control till the same were delivered to the consignee at their door step as per the terms and conditions of supply of goods on F.O.R. destination basis and value is inclusive of transportation charges incurred up to the destination. I have seen some of the invoices wherein transaction value has been shown F.O.R. basis. The transportation charges are forming the part of the assessable value or the transaction value on which the appellant has paid duty as has been claimed by the appellant. As the sales is on F.O.R. basis, it is obvious that up to the destination ownership of the goods also remains with the appellant and any losses en-route up to the destination will be the responsibility of the consignor and not of the consignee. Thus the facts of the case clearly satisfy the parameters mentioned in Boards aforesaid clarification for treating the impugned GTA service as in input service. Consequently the impugned outward GTA service is an input service for the appellant and the appellant has rightly availed Cenvat credit of the service tax paid on such GTA service.
4. Revenue in their memo of appeal have contended that for all purposes factory gate is the place of removal and as such service tax paid on the transportation of the goods from the factory gate onwards is not admissible input credit.
5. We find that the issue is no more res integra and stands settled by the latest decision of Honble High Court of Karnataka reported as CCE and ST Bangalore Vs. ABB Ltd. 2011 (23) STR 97 (Kar.). Vide the said judgement, the Honble High Court has upheld the Larger Bench decision of the Tribunal in the case of ABB Ltd. laying down that the credit of service tax paid on transportation up to place of sale is admissible. There is no dispute in the present appeal as regards the factual position that the sale is on FOR destination basis. As such by following the ratio of the above decision of the Honble High Court, we find no merits in the Revenues appeal and reject the same.
(Pronounced in open Court) (Archana Wadhwa) Member (Judicial) (Mathew John) Member (Technical) RM