Custom, Excise & Service Tax Tribunal
C.C.E. (Appeals) C.C.E. C. & S.Tax, ... vs April 2015 To Dec. 15 on 24 August, 2017
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, 2nd Floor, Bahumali Bhavan, Asarwa, Ahmedabad Sl. No. Central Excise Appeal No. Appellant Respondent
Arising out of the Order-in-Appeal/Order-in-Original No. & date Passed by the Period of dispute 1-2 11150, 11155/2015-SM Panoli Intermediates (India) Pvt. Ltd. C.C.E. & S.T., Vadodara I OIA No.VAD-EXCUS-001-20 & 21/2015-16 dated 13.4.2015 C.C.E., (Appeal I) Vadodara Oct 13 to Mar.14 & April 14 to Sept.14
3. 11094/2016-SM Kelvin Plastics Pvt. Ltd C.C.E., Rajkot OIA No.RAJ-EXCUS-000-APP-057-15-16 dated 23.2.2016 C.C.E., (Appeals-III), Rajkot Dec.11 to Mar.13 4-5 12028, 12030/2016-SM Sterling Biotech Ltd. C.C.E., Vadodara I OIA No.VAD-EXCUS-001-249 - 250/16-17 dated 27.7.2016 C.C.E., (Appeals I), Vadodara Aug.15 to June 2015 & July15 to Jan.16 6-7 10138, 10140/2017-SM Rikon Clock Manufacturing Company C.C.E., Rajkot OIA No.RAJ-EXCUS-000-APP-076-16-17 dated 28.11.2016 C.C.E., (Appeals-III), Rajkot Oct.14 to June 15 8-11 10256 to 10259/2017-SM C.C.E. & S.Tax, Silvasa Blue Star Ltd OIO No.SIL-EXCUS-000-COM-045 to 48/16-17 dt. 28.10.16 C.C.E. & S.Tax, Silvasa Mar.15 to Nov.15; Sept 14 to Feb.15; Jan.14 to Aug.14; Sept.09 to Dec.13
12. 10294/2017-SM Cema Electric Lighting Products India P. Ltd C.C.E. & C., Anand OIA No.VAD/EXCUS/003-APP-344/2016-17 dated 22.9.16 C.C.E. (Appeals I), Vadodara 1.4.12 to 30.9.15
13. 10475/2017-SM Shree Khedut Sahakari Khand Udyog Mandli Ltd C.C.E., Bharuch OIA No.CCESA VAD(APP-II)/VK-395/2016-17 dated 21.12.16 C.C.E.Cus & S. Tax (Appeals II), Vadodara Aug.14 to May.15
14. 10708/2017-SM Mazda Limited C.C.E., Ahmedabad II OIA No.AHM-EXCUS-002-APP-071/16-17 dated 13.12.16 C.C.E. (Appeals II), Ahmedabad April 10 to Dec.14 15-16 10909 -10910/2017-SM Sweety Industries C.C.E. & C., Anand OIA No.VAD-EXCUS-003/APP/445-446/2016-17 dated 20.12.2016 C.C.E. (Appeals I), Vadodara Aug.14 to April 2015; May15 to Oct.15
17. 11366/2017-SM Power Build Pvt. Ltd. C.C.E. & S.Tax, Anand OIA No.VAD-EXCUS-003-APP-589/2016-17 dt. 28.2.2017 C.C.E. (Appeals) C.C.E. C. & S.Tax, Vadodara April 2015 to Dec.15 Appearance:
Present Shri S. Vyas , Advocate for the Assessees at serial No.1, 2,; None for serial No.3, 4, 5, 6, 7; Shri Vikas Agarwal, Authorised Representative for serial No.8 to 11; Shri Dipans Shah, Dy. Manager (Finance) for serial No.12; Shri Rahul Gajera, Advocate for serial No.13; Shri Nirav Shah, Advocate for serial No.14; None for serial No.15 16 and Shri S.Vyas, Advocate for serial No.17; Present Dr. J. Nagori, S/Shri L. Patra, and A. Mishra, A.R. for the Revenue Coram: Honble Dr. D.M. Misra, Member (Judicial) Date of hearing/decision:24.8.2017 Final Order No.A/ 12062 -12078/2017 Per Dr. D.M. Misra:
Heard both sides.
2. The short issue involved in the present appeals is: whether the Assessees are entitled to CENVAT credit of service tax paid on outward freight (GTA service) during the relevant period as mentioned in each of the said appeals. The ld. Advocates appearing for the respective appellants submitted that the issue is covered by the decision of this Tribunal in the case of M/s Shubhalakshmi Polysters Ltd. Vs. CCE & S.T, Vapi vide Order No. A/10424-10473/2017 dt. 27.02.2017.
3. Ld. A.R. for the Revenue reiterated the findings of the ld. Commissioner (Appeals).
4. I find that the issue of admissibility of service tax paid on outward freight (GTA service) for the period prior to 1.4.2008 and thereafter has been considered by this Tribunal in Shubhalakshmi Polysters Ltd.s case(supra). This Tribunal observed as:
17. The learned Authorized Representative for the Revenue in his submission even though did not contradict the meaning of place removal explained in the said circular, however submitted that the circular is binding on the Department and not on this Tribunal, which is free to take a contrary view. I do not find merit in the argument of the Ld. A.R in as much as in the context of allowing credit on outward freight (GTA service) the approach of the Board has been consistent all along even though the definition of place of removal borrowed from the Section 4 of CEA,1944 and later inserted in the CENVAT Credit Rules 2004 w.e.f 11.07.2014. Also, even after the delivery of the judgment in Ispat Industries case, explaining the definition of place of removal in the context of Section 4 of Central Excise Act, 1944, the Board has not issued any further circular, restricting the meaning of place of removal in the light of the observations of the Hon'ble Supreme Court. Therefore, the CENVAT Credit of Service Tax paid on outward freight (GTA service) is admissible when the condition of sale of goods puts burden on the manufacturer to deliver the goods at the buyers premises. This Tribunal has come to the same conclusion in Forace Polymers Pvt. Ltd and Birla Corporation Ltd s case(supra). Further, I do not find merit in the contention that inclusion of element of freight in the assessable value or otherwise in any manner be a relevant factor for considering the eligibility of Cenvat Credit on outward freight (GTA service) for transporting the goods by the manufacturer from the factory to the premises of the buyer in view of the judgment of the Honble Supreme Court in the case of Maruti Suzuki Ltd. Vs. C.C.E., Delhi III 2009 (240) ELT 641 (SC) and the decision of the Honble Bombay High Court in the case of C.C.E., Nagpur vs. Ultratech Cement Ltd. 2010 (20) STR 5(Bom.).
5. In view of the above, to ascertain the place of removal from the condition of sale of the goods, so as to be eligible to CENVAT credit on the service tax paid on out ward freight(GTA Service), the matters are remanded to the adjudicating authority. Needless to mention, a reasonable opportunity of hearing be allowed to the Appellants and the Appellants are at liberty to produce relevant evidences in support of their respective cases. Appeals are allowed by way of remand.
(Dr. D.M. Misra) Member (Judicial scd/ E/11150, 11155/15, 11094, 12028, 12030/16, 10138,10140,10256 to 10259/17, 10294, 10475,10708,10909, 10910, 11366/2017-SM 2