Custom, Excise & Service Tax Tribunal
M/S Aurangabad Auto Engg. Pvt. Ltd vs Commissioner Of Central Excise, ... on 28 June, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. E/815/09 (Arising out of Order-in-Appeal No. JAK(63)193/09 dated 23.3.2009 passed by the Commissioner of Central Excise & Customs (Appeals), Aurangabad). For approval and signature: Honble Shri S.K. Gaule, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Aurangabad Auto Engg. Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Aurangabad Respondent Appearance: Shri Prashant Patankar Consultant for Appellant Shri Sanjay Kalra JDR for Respondent CORAM: SHRI S.K. GAULE, MEMBER (TECHNICAL) Date of Hearing: 28.06.2011 Date of Decision: 28.06.2011 ORDER NO. WZB/MUM/2011 Per: S.K. Gaule Heard both sides.
2. The appellant filed this appeal against Order-in-Appeal No. JAK(63)193/09 dated 23.3.2009 whereby the Commissioner (Appeals) upheld the lower adjudicating authoritys order disallowing the CENVAT credit on outward transport services.
3. The facts of the case are that the appellants are engaged in the manufacture of motor vehicle parts falling under Chapter 87 of Central Excise Tariff Act, 1985. The appellants also availed CENVAT credit under Cenvat Credit Rules, 2005. They availed CENVAT credit of Rs.56,854/- on Business Auxiliary Services for the period from March, 2005 to June, 2007. Proceedings were initiated against the appellant on the ground that they have availed inadmissible CENVAT credit. Hence, a show-cause notice was issued for recovery of CENVAT credit along with interest and imposition of penalty under Rule 15 of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. The lower adjudicating authority as well as the learned Commissioner (Appeals) upheld the proceedings. Hence the appeal.
4. The contention of the appellant is that they have availed CENVAT credit for Service Tax paid on loading and unloading of the goods manufactured by them at the premises of their customers and they were fully covered under the definition of input services under Rule 2(l)(ii) of Cenvat Credit Rules, 2004 and by the Hon'ble Karnataka High Courts decision in the case of ABB Ltd. Vs. Commissioner of Central Excise -2011-TIOL-395-HC-KAR-ST.
5. The learned JDR reiterates the findings of the lower authorities.
6. I have carefully gone through the submissions and perused the case records. I find that the period involved in this case is March, 05 to June, 07. The Larger Bench of the Tribunal in the case of ABB Ltd. Vs. Commissioner of Central Excise, Bangalore 2009 (15) STR 23 (Tri-LB) has held that the services availed by a manufacturer for outward transportation of final products from the place of removal shall be treated as input services in terms of Rule 2(l)(ii) of Cenvat Credit Rules, 2004. The Hon'ble Karnataka High Court in the case of ABB Ltd. (supra) held that the ultimate order passed by the Larger Bench of the Tribunal does not suffer from any infirmity so far as period prior to amendment of the said Rule i.e.01.04.2008, is concerned. The decision is squarely applicable to the present case since the period involved in the case is prior to 01.04.2008 as already discussed, supra.
7. Accordingly, the impugned order is set aside and appeal is allowed.
(Dictated and pronounced in Court) (S.K. Gaule) Member (Technical) Vks/ 1