Custom, Excise & Service Tax Tribunal
Jayaswalneco Industries Ltd vs Cce, Raipur on 10 September, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Court No.3
E/Stay/56430/2013 in Appeal No.E/56004/2013
(Arising out of OIO No.Commissioner/RPR/CEX/83/2012 dated 30.12.2012 passed by the CCE, Raipur)
Date of Hearing/Decision: 10.09.2013
For approval and signature:
Honble Mrs.Archana Wadhwa, Member (Judicial)
Honble Mr.Manmohan Singh, Member (Technical)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
N0
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
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
JayaswalNeco Industries Ltd. Appellant
Vs
CCE, Raipur Respondent
Present for the Appellant: Shri Amit Jain, Advocate Present for the Respondent: Shri M.S.Negi, DR Coram: Honble Mrs.Archana Wadhwa, Member (Judicial) Honble Mr.Manmohan Singh, Member (Technical) FINAL ORDER NO.57715/2013 PER: ARCHANA WADHWA After dispensing with condition of pre-deposit of duty and penalty, we proceed to decide appeal itself.
2. As per the facts on records, the appellant is engaged in the manufacture of iron and steel items. The dispute in the present appeal relates to availability of credit of service tax paid on transportation of the said products from the factory or depot to the customers premises. By denying the same, the Commissioner has confirmed demand of duty of Rs.60,62,152/- Alongwith imposition of penalty of identical amount.
3. Arguing on behalf of the appelalnt, ld.Advocate submits that they have themselves given the said figures of the availment of credit of service tax paid on outward transportation to the Revenue. However, subsequently on realization that the said amount also includes the amount of credit availed in respect of inward transportation, they revised the said figures inasmuch the amount of Rs.22 lakhs was involved in inward transportation. The said figures were verified by the Range office and were found to be correct. However, the Commissioner has not granted the benefit of credit of service tax paid on input services for inward transportation on the ground that the appellants have supplied the different figures and as such manipulating the same. It is the contention of the ld.Advocate that when the figures given by the appellants stands verified by their range authorities, probably under the instruction of the adjudicating authority, the findings of the Commissioner are perverse.
3. As regard balance amount of Rs.38 lakhs, he submits that their sales were on FOR basis in which case the credit of service tax paid on outward transportation of the goods would be available to them in terms of circular No.97/8/2007-ST dated 23.8.2007 as also in terms of decision of Honble Punjab & Haryana High Court in the case of Ambuja Cements Ltd. vs. Union of India-2009 (236) ELT 431 (P&H).
4. Countering the arguments, ld.DR pointed out to the observation made by the Commissioner wherein he has categorically held that examination of the invoices and other documentary evidence revealed that the sales were not on FOR basis and as such the benefit of credit cannot be allowed to them.
5. We have considered the submissions made by both sides. Ld.Advocate has drawn our attention to the purchase order placed by the buyers, delivery challans, transportation documents and final invoices issued by them. The purchase order clearly revealed that sale is on FOR basis. Similarly, the delivery challans and invoices reflect upon the fact that freight stands paid by the appellant. The transportation documents also revealed to the same factual position. If freight stands paid by the appellant, it has to be held that sales were on FOR basis. If that be so, the credit would be available to the appellants.
6. Only aspect required to be addressed in the present case is as to whether the sales were on FOR basis or not. The finding of the adjudicating authority seems to be contrary to the documentary evidence. As such, we deem it fit to set aside the impugned order and remand the matter to the Commissioner for fresh decision with direction that he shall examine the documentary evidence placed on records by the appellants before him in respect of their plea that the sales were on FOR basis in the light of the Boards circular and the decisions of various courts.
7. The stay petition also appeal gets disposed in the above terms.
(Pronounced in the open court)
(MANMOHAN SINGH) (ARCHANA WADHWA)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
mk
3