2012 (6) TMI 529 - AT - Central Excise

Plea for waiver of pre-deposit - export of goods manufactured - denial of Cenvat Credit availed towards service tax paid on air freight on ground that place of removal is the factory gate and the air freight is incurred after removal from the factory gate - Held that - As per section 1(2) of the Central Excise Act, 1944, the said Act extends to the whole of India. It that be so, the place of removal for the purposes of levy of excise duty has to be in India and not anywhere else. Therefore, merely because as per the terms of export contract, the goods have to be delivered at the customer s premises abroad, can it be said that the place of removal is extended to a place outside India. Therefore, air freight incurred for delivery to the buyer s premises cannot be deemed to be input service . Appellant directed to make pre-deposit of 50% of the duty adjudged within 4 weeks - Decided against assessee.

Summary

Issues:
Appeal against order-in-appeal denying Cenvat credit for service tax paid on courier services and outward air freight. Interpretation of "input service" under Cenvat Credit Rules, 2004. Determination of "place of removal" for excise duty purposes in the context of export transactions.

Analysis:
The appellant, a manufacturer of goods under Chapter 85 of the Central Excise Tariff, availed Cenvat Credit for service tax paid on courier services and outward air freight. The department contended that there was no nexus between the services availed and the manufacture of goods, leading to denial of credit. The adjudicating authority upheld the denial, stating that as per the Central Excise Act, the place of removal for goods is within India, and hence, the appellant was not eligible for the credit. Interest and penalty were imposed accordingly. The appellant's appeal was rejected by the lower authority, leading to the current appeal before the Tribunal.

The appellant argued that they satisfied all conditions outlined in a CBEC circular to avail credit for outward freight, emphasizing the integral role of freight charges in the price of goods. They cited judgments from the Punjab & Haryana High Court and the Tribunal to support their claim. However, the Revenue representative opposed the stay application, highlighting that considering the place of removal as outside India for air freight incurred in export transactions would be illogical.

The Tribunal analyzed the definition of "input service" under the Cenvat Credit Rules, 2004, and the definition of "place of removal" under the Central Excise Act, 1944. It concluded that since the Act extends to the whole of India, the place of removal for excise duty purposes must be within India. Therefore, the appellant's argument that the place of removal should be deemed as the buyer's premises abroad for air freight incurred in export delivery was deemed illogical. The Tribunal found no merit in the appellant's contentions based on previous judgments and directed a 50% pre-deposit of the duty adjudged, with further compliance deadlines set.

In conclusion, the Tribunal dismissed the appellant's claim for full waiver of pre-deposit, emphasizing the necessity for compliance with the duty adjudged. The judgment clarified the interpretation of "input service" and "place of removal" in the context of excise duty on export transactions, highlighting the importance of adherence to statutory definitions and logical reasoning in such matters.