2020 (4) TMI 879 - Commissioner - Central Excise

CENVAT Credit - Input services or not - GTA services for outward transportation of fly ash arising in course of generation of steam and electricity in their captive power plant - reverse charge mechanism - HELD THAT - The decision of Hon'ble CESTAT, Principal Bench, in M/S. JINDAL STEEL AND POWER LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND ST, RAIPUR 2018 (4) TMI 817 - CESTAT NEW DELHI and that dealing with similar issue has held that in the case of INDIA PESTICIDES LTD. VERSUS COMMISSIONER OF C. EX. S.T., LUCKNOW 2016 (8) TMI 724 - CESTAT ALLAHABAD are relevant to the instant case at hand. In the former case it has been held that- removal and disposal of fly ash being mandate of law are part of manufacture of excisable goods, and in the latter it has been held that- Disposal of Hazardous waste- said disposal being essential activity for manufacture of final products viz. Insecticides, credit on expenses incurred for transportation of hazardous waste outside factory, admissible as input service-Demand and penalty set aside-Rule 2(1) of Cenvat Credit Rules, 2004 - both of these pronouncements sums up to conclude that all the taxable services utilised for removal of the fly ash from the power plants and transportation thereof upto the place of disposal and final disposal thereof in accordance with the provisions of the relevant environmental laws merit to be considered as input services in terms of Rule 2(1) of the rules. There is no dispute that the fly ash is a hazardous waste and disposal thereof in a prescribed manner is a statutory obligation cast upon the Appellant by the Ministry of Environment and Forest. Thus, all the taxable services utilized for removal of the fly ash from the power plant to the designated place of disposal as well as the services utilised in final disposal thereof merit to be considered as input services and accordingly service tax paid if any on the services so utilised shall be available for credit as input service - The ownership of the goods passes on to the hands of the buyer at the place of removal and hence all the expenses beyond this point fall into the account of the buyer. Accordingly the manufacturer was not responsible for incurring any expense in respect of the goods beyond the point of place of removal and hence not eligible for credit on any service utilised beyond the place of removal. In the instant case of the Appellant, the impugned goods are neither manufactured nor carried any value. There was no sale of goods involved and hence the concept of place of removal cannot be construed or applied in their case. The ownership of the impugned goods all along remained with the Appellant and accordingly the onus to remove, transport and dispose the fly ash in accordance with the mandate of relevant laws was with the appellant. Thus, all the expenses upto removal of finished goods are available for Cenvat under Section 4 of the Central Excise Act, 1944 and the Rules made thereunder - appeal allowed - decided in favor of appellant.

Summary

Issues:
Irregular availment and utilization of CENVAT credit on service tax paid under reverse charge mechanism for outward transportation of fly ash.

Analysis:
The case involved a Show cause Notice alleging irregular availment and utilization of CENVAT credit amounting to a specific sum on service tax paid for GTA services for the transportation of fly ash. The Respondent's order disallowed the credit, ordered recovery, imposed a penalty, and charged interest under relevant provisions. The Appellant contended that the services qualified as input services under the Cenvat Credit Rules, emphasizing the broader view to be taken for such provisions.

The Appellant argued that the services used directly or indirectly in or in relation to the manufacture of final goods should be considered as input services. They cited judicial pronouncements supporting their stance, highlighting the essentiality of fly ash disposal for business operations and compliance with Environment Protection Laws. The Appellant also refuted any fraudulent intent or contravention of laws to evade duty payment, asserting the demand was time-barred and penalty and interest should not apply.

During the Personal Hearing, the Appellant presented judgments supporting their contentions, including the case of Jindal Steel and Power Ltd. vs. CCE. The Commissioner analyzed the arguments, case records, and documents submitted during the hearing. The Adjudicating Authority had ruled against the Appellant, stating that the services for fly ash removal did not directly or indirectly relate to the manufacture of final products. They relied on a Supreme Court decision regarding GTA services post an amendment in Rule 2(1) of the Rules.

However, the Commissioner disagreed with the Adjudicating Authority's interpretation, citing relevant judicial pronouncements. They highlighted the essential nature of fly ash removal for manufacturing activities and the statutory obligation to dispose of it under environmental laws. The Commissioner concluded that all services utilized for fly ash removal and disposal qualified as input services, allowing the service tax credit.

The Commissioner differentiated the case from the Supreme Court decision cited by the Adjudicating Authority, emphasizing the absence of a sale of goods and the continuous ownership of the goods by the Appellant. They clarified the significance of the "place of removal" concept in the context of dutiable goods and ownership transfer. Ultimately, the Commissioner set aside the impugned order, allowing the appeal with consequential benefits under relevant tax laws.