2010 (4) TMI 637 - AT - Central Excise

Cenvat credit of service tax input service service tax paid on GTA service cenvat credit availed on outward transportation of finished goods upto the place of removal - covered by the definition of input service Held that - Cenvat credit of service tax paid on the GTA services availed for transportation of the finished goods up to the consignment agent s premises admissible - matter is remanded to the original Adjudicating Authority for de novo adjudication - stay application is dismissed

Summary

Issues:
1. Interpretation of the definition of "input service" under Cenvat Credit Rules, 2004.
2. Determination of the "place of removal" for availing Cenvat credit on service tax paid for transportation of finished goods.
3. Admissibility of Cenvat credit on GTA services for transportation of goods up to consignment agent's premises.

Analysis:

Issue 1: Interpretation of the definition of "input service" under Cenvat Credit Rules, 2004
The appellant, engaged in the manufacture of biscuits and other bakery products, availed Cenvat credit on Central Excise Duty paid on inputs and service tax paid on input services. A show cause notice was issued for recovery of allegedly wrongly taken Cenvat credit on service tax for outward transportation of finished goods. The Additional Commissioner confirmed the demand, interest, and penalty. The Commissioner (Appeals) upheld this decision. The appellant contended that outward transportation of finished goods up to the "place of removal" is covered under the definition of "input service" as per Rule 2(l) of Cenvat Credit Rules, 2004.

Issue 2: Determination of the "place of removal" for availing Cenvat credit
The Tribunal analyzed the definition of "place of removal" under the Central Excise Act, 1944, which includes premises of a consignment agent where goods are to be sold after clearance from the factory. If goods are sold from the consignment agent's premises, that place is considered the "place of removal." Similarly, if sales are on FOR destination basis, where ownership and risk remain with the manufacturer until goods reach the customer's premises, the customer's premises become the "place of removal." The Board's circular clarified that in such cases, Cenvat credit on service tax for transportation up to the customer's premises is admissible.

Issue 3: Admissibility of Cenvat credit on GTA services for transportation up to consignment agent's premises
The Tribunal found that the Department rejected the appellant's claim without verifying if sales indeed occurred at the consignment agent's premises. As the appellant's invoices supported their claim, the Tribunal set aside the impugned order and remanded the matter for fresh adjudication. The Tribunal directed the original Adjudicating Authority to ascertain whether sales were through consignment agents and if so, whether Cenvat credit on service tax for transportation up to the consignment agent's premises is admissible.

In conclusion, the Tribunal set aside the impugned order, remanded the matter for de novo adjudication, and dismissed the stay application as infructuous.