2015 (10) TMI 1978 - AT - Central Excise

Waiver of pre deposit - penalty imposed under Rule 15 (2) of the Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 - demand of cenvat credit - Place of removal - Held that - Prima-facie, we find that the dispute rests on the interpretation of the expression place of removal , which is covered by the decision of the Larger Bench of this Tribunal in the case of Honest Bio-vet Pvt. Ltd. (2014 (11) TMI 579 - CESTAT AHMEDABAD). While deciding the case in the context of eligibility of remission from duty liability on destruction of the goods in port area - Applicant could able to make out a prima-facie case for total waiver of pre deposit of dues adjudged. Accordingly, the requirement of pre-deposit of all dues adjudged is waived and its recovery stayed during pendency of appeal - Stay granted.

Summary

Issues involved:
Application for waiver of pre-deposit of cenvat credit and penalty under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944.

Analysis:
The Applicant sought waiver of pre-deposit of cenvat credit and penalty amounting to Rs. 62.27 lakhs imposed under Rule 15(2) of the Cenvat Credit Rules, 2004. The Applicant, engaged in manufacturing various goods, availed cenvat credit on input services used for exporting manufactured goods between June 2006 to March 2011. The dispute arose as the services availed in the Port area, on which service tax was paid, were deemed ineligible for cenvat credit, based on the interpretation of "place of removal" under Rule 2(l) of Cenvat Credit Rules, 2004. The Applicant contended that the demand was based on an erroneous interpretation, arguing that the place of removal should be the load Port for export, as established in the Larger Bench decision of the Tribunal in the case of Honest Bio-vet Pvt. Ltd. vs. Commissioner of Central Excise, Ahmedabad I. The Applicant emphasized that regardless of FOB or CIF contracts, the load Port should be considered the place of removal for exports.

The Revenue, referencing a recent Circular, highlighted the need to determine the "place of removal" based on the place of sale where ownership of goods is transferred. It was argued that in CIF contracts, ownership is transferred at the factory gate, not the Port, thus making cenvat credit on services used at the Port area inadmissible. The Tribunal examined the dispute revolving around the interpretation of "place of removal," referring to the Larger Bench decision in the Honest Bio-vet Pvt. Ltd. case. The Tribunal noted that under ARE-1 for export under bond, the sale is completed at the load Port, extending ownership and duty liability up to that point. Therefore, if goods cleared for export are destroyed before shipment, the duty liability remains with the manufacturer. Consequently, the Tribunal found that the Applicant had established a prima facie case for total waiver of pre-deposit of dues adjudged, and accordingly, the requirement of pre-deposit of all dues was waived, with recovery stayed during the appeal's pendency. The stay petition was allowed, providing relief to the Applicant.