2011 (5) TMI 517 - AT - Central Excise

Cenvat credit - GTA service availed for transportation of goods from the factory gate to the customer s premises - Held that - No evidence has been produced by the assessee that the sale is on FOR destination basis and excise duty has been paid on the price which includes freight charges for transportation from the factory to the customer s premises - When the assessee have paid excise duty on the price at the factory gate and the transportation from the factory gate to the customer s premises is not part of the assessable value of the goods for payment of excise duty, for the purpose of Cenvat Credit, the transportation from the factory gate to the customers premises cannot be treated as input service - Decided against of assessee.

Summary

Issues:
1. Eligibility of Cenvat Credit for service tax paid on outward transportation of goods.
2. Interpretation of input services under Cenvat Credit Rules, 2004.
3. Application of judgment regarding ownership and risk of goods during transportation.

Analysis:

1. The case revolved around the eligibility of the manufacturer of Pet bottles to avail Cenvat Credit for the service tax paid on outward transportation of goods from the factory to the customer's premises. The original adjudicating authority had disallowed the credit, leading to a demand of Rs.82,307 along with interest and a penalty. The Commissioner(Appeals) upheld the Central Excise duty demand but set aside the demand for Cenvat Credit. This discrepancy led to the department filing an appeal against the decision.

2. The main contention was whether the transportation from the factory gate to the customer's premises could be considered an input service under Rule 2(l) of the Cenvat Credit Rules, 2004. The Departmental Representative argued that the conditions set by the Hon'ble Punjab & Haryana High Court needed to be satisfied for the transportation to qualify as an input service. These conditions included ownership of goods during transit, risk of loss or damage being with the manufacturer, and the freight charges being integral to the goods' price on which excise duty is paid.

3. The judge, after considering the submissions and records, referred to the judgment of the Hon'ble Punjab & Haryana High Court in the case of Ambuja Cements Ltd. vs. Union of India. The judgment highlighted that transportation services could be considered input services only if the sale was on FOR destination basis, and specific conditions regarding ownership, risk, and integral freight charges were met. Since the manufacturer had paid excise duty at the factory gate and the transportation to the customer's premises was not included in the assessable value for duty payment, the transportation did not qualify as an input service for Cenvat Credit. Consequently, the order setting aside the Cenvat Credit demand was deemed unsustainable, and the original adjudicating authority's decision was restored. The Revenue's appeal was allowed, and the cross objection was disposed of accordingly.