2014 (10) TMI 679 - AT - Central Excise

Disallowance of CENVAT Credit - outward transportation charges - invocation of the extended period of limitation - Place of removal - Held that - there is no provision in the Central Excise Act, 1944 or its rules or in any Circular issued by the Board, that where Duty is charged on a specified rate, the place of removal would invariably be the factory gate. The place of removal would depend upon the specific transaction in issue and where the removal is pursuant to sales on FOR basis, with the risk in the goods manufactured being borne by the manufacturer till delivery to the customer at its premises and where the composite value of sales include the value of freight involved in delivery at the customer s premises, the place of removal would not be at the factory gate, but at the customer s premises, held the High Court. The certificates issued by assessee s customers to this effect and adverted to in paragraphs H.13 of the impugned order, the conclusion is irrestible that sales by the assessee were on FOR basis and therefore the assessee had legitimately availed Cenvat credit on the service tax paid on the freight charges borne for its FOR sales. - Following decision of Ultratech Cement Ltd. vs. CCE, Raipur reported in 2014 (8) TMI 788 - CHHATTISGARH HIGH COURT - Decided in favour of Assessee. Adjudication and drafting of adjudication orders requires training; and incompetent departmental adjudication ill serves the interests of the State. Apart from accentuating the appellate docket load, such casual orders contribute to faith deficit in the process of departmental education and imperils the due process of law. The appropriate authorities may consider this pathology writ large in departmental adjudication. For this purpose, we direct that a copy of this judgment be marked to the Board of Central Excise and Customs and to the Secretary (Revenue), Ministry of Finance, Department of Revenue, for consideration.

Issues Involved:
1. Disallowance of Cenvat credit on outward transportation charges.
2. Invocation of the extended period of limitation.
3. Legitimacy of treating the place of removal as the customer's premises.
4. Adjudication process and quality of the adjudication order.

Issue-wise Detailed Analysis:

1. Disallowance of Cenvat Credit on Outward Transportation Charges:
The appeal challenges the adjudication order that disallowed Cenvat credit amounting to Rs. 3,19,79,457/- availed by the assessee on outward transportation charges. The assessee contended that their sales were on an FOR basis, with freight charges included in the assessable value, and that they bore the transit risk until delivery at the customer's premises. The assessee relied on the Punjab & Haryana High Court judgment in Ambuja Cements Ltd. vs. Union of India, which held that in FOR destination sales, the freight charges are an input service under Rule 2(l) of the Cenvat Credit Rules, 2004. The Board Circular No. 97/8/2007-ST also supported this view, stating that credit of service tax paid on transportation is admissible if the sale occurs at the destination point.

2. Invocation of the Extended Period of Limitation:
The first show cause notice invoked the extended period of limitation. The Commissioner justified this by stating that the assessee had not disclosed the availing of Cenvat credit on outward freight to the Department, which came to light only during an audit. The Commissioner concluded that the extended period was invokable under Section 11A of the Central Excise Act, 1944, due to suppression of facts with intent to evade duty.

3. Legitimacy of Treating the Place of Removal as the Customer's Premises:
The assessee argued that the place of removal should be considered the customer's premises based on the terms of their sales contracts. The Commissioner, however, dismissed these contentions, stating that the assessee failed to prove that freight charges were an integral part of the price of the goods. The Tribunal found the Commissioner's conclusions to be unsupported by analysis or reasons, noting that the Commissioner ignored the specific contentions and evidence provided by the assessee. The Tribunal cited the Chhattisgarh High Court's judgment in Ultratech Cement Ltd. vs. CCE, Raipur, which held that the place of removal depends on the specific transaction and can be the customer's premises in FOR sales.

4. Adjudication Process and Quality of the Adjudication Order:
The Tribunal criticized the adjudication order for its lack of analysis and reasoning, describing it as "wholly perverse and a sub-standard exhibit of adjudication." The Tribunal emphasized that reasons are essential for linking material evidence to conclusions, as pointed out by the Supreme Court in Union of India vs. Mohan Lal Capoor. The Tribunal imposed costs of Rs. 2,500/- on the Revenue for the inadequate adjudication process and directed that a copy of the judgment be sent to the Board of Central Excise and Customs and the Secretary (Revenue) for consideration of the need for better training in adjudication and drafting.

Conclusion:
The Tribunal quashed the impugned order dated 29/04/13, finding it unsustainable due to the lack of analysis and reasoning. The appeal was allowed, with costs imposed on the Revenue. The Tribunal also highlighted the need for improved training in departmental adjudication to prevent such deficiencies in the future.

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