Custom, Excise & Service Tax Tribunal
Applicomp India Ltd vs Commissioner Of Central Excise ... on 9 October, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/25156/2013-SM, E/25157/2013-SM [Arising out of Order-in-Appeal No. 302-2012 dated 08/10/2012 passed by Commissioner of Central Excise(Appeals) , BANGALORE-I ] For approval and signature: HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 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 Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Applicomp India Ltd. No.6-11, Krishna Sagara Village, Attibele Taluk, Hosur Road, Bangalore -562107 BANGALORE - 562107 KARNATAKA Appellant(s) Versus Commissioner of Central Excise ,Customs and Service Tax BANGALORE-I NULL POST BOX NO 5400...CR BUILDINGS, BANGALORE, - 560001 KARNATAKA Respondent(s)
Appearance:
Shri Raghavendra, Advocate V.LAKSHMIKUMARAN, G.SHIVADASS, ADVS WORLD TRADE CENTER NO.404-406, 4TH FLOOR, SOUTH WING, BRIGADE GATEWAY CAMPUS,NO.26/1DR.RAJKUMAR ROAD, MALLESWARAM WEST, BANGLAORE -560055 For the Appellant Shri Mohd. Yousaf, Addl. Commissioner(AR) For the Respondent Date of Hearing: 09/10/2015 Date of Decision: 09/10/2015 CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER Final Order No. 22031-22032 / 2015 Per : ARCHANA WADHWA Benefit of CENVAT credit of service tax paid on the outward transportation of the goods from the appellants factory to the buyer was denied to the appellant. It I a fact that the definition of input services appearing in Rule 2(l) was amended w.e.f. 01/04/2008 and the expression clearance of final product from the place of removal was substituted with clearance of final product upto the place of removal. The lower authorities have concluded that the place of removal in the appellants case is the factory gate in which case they would not be entitled to the benefit of CENVAT credit. As regards the Boards Circular No.97/08/2007-ST dt. 23/08/2007, which allows the availment of credit in case the sale is on FOR basis, they concluded that the appellants have not fulfilled the three conditions of the said circular. The said conditions are to the effect that the assessee continues to remain the owner of the goods, the freight expenses have been borne by him and the freight is a part of assessable value.
2. Learned advocate appearing for the appellant submits that their sales are on FOR basis is evident from the purchase orders and placed upon by their customers and if that be so all the three conditions are satisfied. He also relies upon the Tribunals decision in the following cases;
a. Ultratech Cement Ltd. Vs. CCE, Rohtak 2014(35) STR 364 (Tri. Del.)] b. Ultratech Cement Ltd. Vs. CCE, Rohtak 2015(37) STR 364 (Tri. Del.)] c. M.P. Biscuits Pvt. Ltd. Vs. CCE, Allahabad 2012(282) ELT 563 (Tri. Del.)] d. L.G. Electronics (India) Pvt. Ltd. Vs. CCE, Noida 2010(19) STR 350 (Tri. Del.)]
3. Inasmuch as the dispute relates to the factual position and requires verification and examination of documents, I deem it fit to set aside the impugned order and remand the matter to the original adjudicating authority for fresh decision. Needless to say that appellant would place on record all the relevant documents and the law as declared by the Tribunal in the above referred decisions would be taken into consideration by the adjudicating authority. Both the appeals are allowed by way of remand.
(Order pronounced and declared in open court) ARCHANA WADHWA JUDICIAL MEMBER Raja.
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