Custom, Excise & Service Tax Tribunal
Ambuja Cements Limited vs Commissioner Of Central Excise & ... on 10 July, 2024
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH, COURT NO. 4
EXCISE APPEAL NO. 55323 OF 2023
[Arising out of Order-in-Appeal No. 139(AK)CE(JDR)2022 dated 20.12.2022
passed by the Commissioner (Appeals), Central Excise & CGST, Jodhpur)
AMBUJA CEMENTS LIMITED
Unit Rabriyawas
P.O. Rabriyawas,
Appellant
Tehsil-Jaitaran,
Pali - 306709
Vs.
COMMISSIONER OF CENTRAL
Respondent
EXCISE & CGST-JODHPUR G-105, New Industrial Area Opp.Diesel Shed, Basni, Jodhpur-342003.
Appearance:
Present for the Appellant: Mr. S.C. Vaidyanathan & Mehak Mehra, Advocates Present for the Respondent:Mr. Rohit Issar, Authorised Represetative CORAM: HON'BLE DR. RACHNA GUPTA, MEMBER ( JUDICIAL ) Date of Hearing/ Decision : 10/07/2024 FINAL ORDER NO.56057/2024 DR. RACHNA GUPTA The appellant is engaged in manufacture of cement and clinker. Department observed that the appellants have been availing Cenvat credit of service tax paid on clearing and forwarding agency service. The said service is denied to be an eligible input service. Resultantly, the amount of Rs.39,42,066/- as availed as Cenvat Credit for the period October 2016 to June, 2017 is alleged as a contravention of 2 E/55323 OF 2023 Rule 3 and 4 of Cenvat Credit Rules, 2004. Vide the Show Cause Notice No.1793 dated 25.10.2018 it is alleged that the C& F Agency Service is received by the appellant for loading and unloading of the goods after removal thereof from the factory to different warehouses and dealers point. Denying these warehouses and dealers points to be the place of removal, that the services of C & F agency is denied to be eligible input service. Hence the Show Cause Notice has proposed the reversal of the aforesaid amount of Cenvat Credit alongwith the proportionate interest and the appropriate penalties. The said proposal has been confirmed initially vide Order-in-Original No.50/2021 dated 10.12.2021. Appeal against the said order has been rejected vide Order-in-Appeal No.139/2020 dated 20.12.2022. Still being aggrieved, the appellant is before this Tribunal.
2. I have heard Mr. S.C. Vaidyanathan ld. Counsel for the appellant and Mr. Rohit Issar, Authorised Representative for the Revenue.
3. Ld. Counsel for the appellant has mentioned that the issue involved herein is no more res-integra. The C & F Agent Service is an input service in relation to manufacture and the clearance of final product upto the place of removal is eligible for the availment of Cenvat Credit in terms of Rule 3 of CCR, 2004. Appellant's own case in the matter of Ambuja cements Ltd. vs. Commissioner of Central Excise and Service Tax, Surat-I reported as 2023 (4) CENTAX 351 (Tri. - Admd.) relied upon.
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E/55323 OF 2023
4. Following decisions have also been relied upon:-
1. Commissioner of C.Ex., Nagpur vs. Ultratech Cement Ltd reported in 2010 (260) ELT 369 - Bombay High Court
2. Coca Cola India Pvt. Ltd. v. Commissioner of C.Ex., Pune-III reported in 2009 (15) STR 657 (Bom.)
3. Cadila Pharmaceuticals Ltd. vs. CCE - Ahmedabad-II (Vice versa), 2024(6) TMI 841 - CESTAT Ahmedabad.
4. Orient Bell Ltd. vs. C.C.E. Bharuch reported in 2024 (3) TMI 1039 - CESTAT Ahmedabad.
5. Banswara Textile Mills Ltd. v. Commissioner of Central Excise, Jaipur reported in 2013 (297) E.L.T. 216 (Tri.-Del.)
5. It is mentioned that the Warehouse /Dealer Depot are duly been considered as the place of removal in the definition given in rule 2 (q)
(a) of CCR 2004. Hence the service received for forwarding the stock transfer to these places is the service till the place of removal. Impressing upon that the warehouse /dealer depots are wrongly denied to be the place of removal, that the order under challenge is prayed to be set aside and appeal is prayed to be allowed. Ld. Counsel has also relied upon the decision of Bombay High Court in the case of Commissioner of Central Excise, Nagpur vs. Ultratech Cement Ltd. reported in 2010 (260) ELT 369 and has prayed for order under challenge to be set aside and appeal to be allowed. While making submissions with respect to this appeal and replying to the submissions made by the Ld. Counsel for the appellant, ld. DR has acknowledged the Departments own decision passed in appellant's own 4 E/55323 OF 2023 case for the immediately preceding period. It has also been acknowledged that the Department has not gone in the appeal against the said decision. The present appeal is prayed to be disposed of accordingly.
6. Having heard the rival contentions and perusing the record, I observe that the impugned order-in-appeal has denied the cenvat credit on clearing and forwarding agent services used by the appellants for loading/unloading of goods from the appellant's factory to the appellants warehouses/depots on the ground that such services are used beyond the place of removal. The only issue to be adjudicated accordingly is as to whether the warehouse / depots are the place of removal or not. The definition of place of removal is given in rule 2 of CCR 2004 which defines the input services is perused. The definition reads as follows;-
"(qa) ―place of removal‖ means-
(i) a factory or any other place or premises of production or manufacture of the excisable goods; (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty;
(iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory, from where such goods are removed"
7. As apparent from the said definition clause (2) thereof includes warehouse to be a place of removal and clause (3) thereof includes 5 E/55323 OF 2023 depots as the place of removal. Admittedly, the cement manufactured by the appellant has been transferred to the warehouse/depot. Admittedly, the C & F Agency service is obtained for the transit from factory to warehouse or depot. As already observed from the above definition, the warehouses as well as depot are also the place of removal. The decision of Bombay High Court in the case of Ultratech (supra) as relied upon by the appellant has been upheld by Hon'ble Supreme Court in the case of Commissioner of Central Excise and Service Tax vs. Ultratech Ltd. reported in 2018 (9) GSTL 337 (SC). The ratio of the decision is that all input services as has been received till the place of removal are eligible for the availment of Cenvat Credit.
8. From the above discussion, it is clear that the service of C & F agent as received by the appellant since was received till the place of removal; it is held that appellant is eligible for the availment of Cenvat Credit. The denial of said availment is not sustainable. The order under challenge is liable to be set aside. Commissioner (Appeals) is observed to have not followed the judicial protocol. With these observations, the order under challenge is hereby set aside. Consequent thereto, the appeal stands allowed.
[Dictated & pronounced in the open Court] (RACHNA GUPTA) MEMBER ( JUDICIAL ) Anita