Custom, Excise & Service Tax Tribunal
M/S. Applicomp India Ltd vs The Commissioner Of Central Excise, ... on 16 December, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/20249/2015-SM [Arising out of Order-in-Appeal No. 582/2014 dated 25/09/2014 passed by Commissioner of Central Excise , BANGALORE-I( Appeal) ] M/s. Applicomp India Ltd No 6-11, Krishna Sagara Village, Attibele Taluk, Hosur Road BANGALORE - 562107 KARNATAKA Appellant(s) Versus The Commissioner of Central Excise, Customs and Service Tax Bangalore-I POST BOX NO 5400, CR BUILDINGS, BANGALORE, - 560001 KARNATAKA Respondent(s)
Appearance:
Mr. Mohammed Ibrahim, Advocate LAKSHMI KUMARAN & SRIDHARAN WORLD TRADE CENTRE NO.404-406, 4TH FLOOR, SOUTH WING BRIGADE GATEWAY CAMPUS NO.26/1, DR. RAJKUMAR ROAD, BANGALORE - 560 055 KARNATAKA For the Appellant Mr. Pakshi Rajan, AR For the Respondent Date of Hearing: 16/12/2016 Date of Decision: 16/12/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 21454 / 2016 Per : S.S GARG The present appeal is directed against the impugned order dated 25.9.2014 passed by Commissioner (A) whereby he rejected the appeal of the appellant and upheld the Order-in-Original passed by the Additional Commissioner.
2. Briefly the facts of the case are that the appellant is engaged in the manufacture of excisable goods i.e., TV, refrigerator, washing machine, compressor, etc., classifiable under Chapter 84 and 85 of Central Excise Tariff Act, 1985. The appellant are also registered as a recipient of service with the Service Tax Commissionerate under the category of Goods Transport Agency (GTA) service for the purpose of payment of service tax. The goods manufactured by the appellants are covered under the III Schedule to the Central Excise Act, 1944 and are cleared on payment of central excise duty on MRP value in terms of Section 4A of Central Excise Act, 1944. The appellants are availing CENVAT credit of service tax paid on services of transport agency by transporting the goods manufactured by them to the premises of the buyers i.e., M/s. Videocon Industries Ltd. and M/s. Kitchen Appliances Ltd. The transportation costs are borne by the appellant and they are paying service tax on the same and are also availing the credit as the receipt of GTA service. The appellant were issued a show-cause notices dated 17.4.2009, 13.11.2009 and 18.6.2010 proposing to demand CENVAT credit on the ground that the credit availed on GTA services received was irregular along with interest and penalty. Appellant refuted the allegation in the show-cause notice with supporting documentary evidence. All the three show-cause notices were disposed of by the Additional Commissioner vide his Order-in-Original dated 28.2.2011 confirmed the demand as proposed in the show-cause notice. Aggrieved by the said order, the appellant filed appeal before the Commissioner (A) who vide his order dated 25.9.2014 rejected the appeal of the appellant. Hence the present appeal.
2. Heard both the parties and perused the records.
3. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed ignoring the circular issued by the Board and also ignoring the various catena of judgments on the issue decided by the Tribunal and the High Court. He further submitted that in the appellants own case for an earlier period this Tribunal has allowed the appeal of the appellant and set aside the demand on GTA services. He further submitted that the Commissioner (A) has wrongly confirmed the demand on the ground that the customers premises cannot be considered as a place of removal as per the definition of Rule 2(l) of CENVAT Credit Rules, 2004 and hence the service tax paid on transportation of goods to the buyers premises on FOR sale basis is not available as credit to the appellant. Learned counsel further submitted that the appellant has undertaken the transportation of the finished goods as part of the agreement/contract entered by them with the customers. In their case, the sale has taken place at the destination point and transportation cost is an integral part of the sale consideration. The ownership of the goods and the property in the goods remained with the appellant till the delivery of the goods takes place. In support of his submissions, he has relied upon the following decisions:
a. Circular No.97/8/2007-ST dated 23.8.2007.
b. L.G. Electronics (India) Pvt. Ltd. vs.CCE, Noida: 2010 (19) STR 340 (Tri.-Del.) c. Palco Metals Ltd. vs. CCE, Ahmedabad: 2012 (280) ELT 299 (Tri.-Ahmd.) d. CCE vs. Parth Poly Wooven Pvt. Ltd: 2012 (25) STR 4 (Guj.) e. Ultratech Cement Ltd. vs. CCE: 2014 (307) ELT 3 (Chhattisgarh) f. Circular No.988/12/2014-CX dated 20.10.2014 g. Madras Cement Ltd. vs. CCE, Bangalore: 2015 (40) STR 645 (Kar.) h. CESTAT Final Order No.22031-22032/2015 dated 9.10.2015 in the case of Applicomp India Ltd. vs. CCE, Bangalore. i. Accenture Services Pvt. Ltd. vs. CST, Mumbai-II: 2015 (40) STR 719 (Tri.-Mumbai) 3.1 Learned counsel further submitted that the appellant have all the documents in the form of invoices raised on the customers by the appellant during the relevant period and also lorry receipts raised by the transporters on the appellant on the basis of which service tax was paid and credit availed during the relevant period but the authorities below have not considered these documents to arrive at a finding as to when the ownership in the goods has taken place. This Tribunal in the appellants own case vide Final Order No.22031-22032/2015 decided on 9.10.2015 and Final order No.21223/2016 dated 17.11.2016 has allowed the appeals of the appellant by way of remand on an identical issue.
4. On the other hand, the learned AR reiterated the findings of the impugned order.
5. After considering the submission of both the parties and judgments cited supra and the decision of the Tribunal in the appellants own case, I allow the appeal of the appellant by setting aside the impugned order and remanding the matter to the original adjudicating authority for fresh decision after considering the documents filed by the appellant. 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. Therefore, the appeal is allowed by way of remand by setting aside the impugned order.
(Operative portion of the Order was pronounced in Open Court on 16/12/2016.) S.S GARG JUDICIAL MEMBER rv 6