2016 (4) TMI 189 - AT - Central Excise

Cenvat credit of the service tax paid on transportation of goods - Whether Cenvat Credit is admissible in respect of service tax paid on transportation of the goods cleared from the places for delivery at the place of the buyer as per the terms of the contract of sale between the parties prior to 01.04.2008 and thereafter? - from the place of removal and upto the place of removal - Held that - In substance, the service recipient of the transportation is called the person liable to pay service tax. Once service tax is levied under Section 66 of the Finance Act, 1994 that becomes admissible credit for the grant under the scheme of Cenvat Credit Rules, 2004. Therefore, the service tax paid in terms of the reverse charge mechanism under Section 68 of the Finance Act, 1994 read with Section 19 of the Sale of Goods Act, 1930 and the circular aforesaid becomes input service to fulfill contractual obligation. That does not disentitle the tax payer to the Cenvat credit of the service tax paid in respect of transport service availed to make delivery of goods at the destination which otherwise would make the rule of cascading effect otios and export shall be taxable. That is not permitted. Even for this reason also the assessees are entitled to Cenvat credit. So far as the export of goods are concerned, following the aforesaid rationale, the service tax paid availing transportation service shall be admissible to the Cenvat credit or refundable where that is not possible to be set off against future liability. It is also submitted in the Bar that C&F and CHA services were availed for export of the goods. Following the ratio laid down in the case of Western Agencies Pvt. Ltd. Vs Commissioner of Central Excise, Chennai (2011 (3) TMI 528 - CESTAT, CHENNAI (LB)), the service tax paid in respect of those services shall entitle the assessees to avail Cenvat credit. Learned Adjudicating Authority concerned shall dispose of claims of the appellants on the issues of Cenvat credit granting fair opportunity of hearing to them and examining relevant evidence in each case following aforesaid guidelines shall pass reasoned and speaking order. If there are any other claims other than the Cenvat credit , C&F and CHA service, such issues shall be dealt by the authority in accordance with law considering pleadings, evidence and law.

Summary

Issues Involved:
1. Entitlement to Cenvat credit of service tax paid on transportation of goods from the place of removal to the port of export.
2. Admissibility of Cenvat credit for service tax paid on transportation of goods to the buyer's location as per the contract terms before and after 01.04.2008.

Issue-wise Detailed Analysis:

1. Entitlement to Cenvat Credit of Service Tax Paid on Transportation of Goods from the Place of Removal to the Port of Export:

The appellants argued that they are exporters of goods, and the service tax paid on transportation from the factory, depot, or any other place of removal to the port of export should be considered as input service for export. They claimed Cenvat credit for this service tax, which was denied by the Revenue. The appellants referenced Rule 2(l) of the Cenvat Credit Rules, 2004, which defines "input service" and includes services used in relation to the clearance of final products from the place of removal. They emphasized that the service tax on transportation was paid under the reverse charge mechanism as per the Finance Act, 1994, making them eligible for Cenvat credit.

The Revenue contended that no Cenvat credit or refund should be granted for goods delivered at the port of export, as the transport charges incurred were post-clearance and not considered "input service."

The Tribunal examined the provisions of the Central Excise Act, 1944, and the Cenvat Credit Rules, 2004, alongside Section 19 of the Sale of Goods Act, 1930, to determine the "place of removal." The Tribunal also considered Circular No.999/6/2015-Cx., which clarified that for export, the place of removal is the port where the shipping bill is filed by the manufacturer exporter. The Tribunal concluded that the service tax paid on transportation to the port of export qualifies for Cenvat credit or refund.

2. Admissibility of Cenvat Credit for Service Tax Paid on Transportation of Goods to the Buyer's Location as per the Contract Terms Before and After 01.04.2008:

For the period before 01.04.2008, the appellants argued that the transportation service used to deliver goods to the buyer's location should be considered as "input service" under the then-existing Rule 2(l) of the Cenvat Credit Rules, 2004, which included services used in relation to the clearance of final products from the place of removal. They claimed that the service tax paid on such transportation was eligible for Cenvat credit.

Post 01.04.2008, the term "upto the place of removal" replaced "from the place of removal" in Rule 2(l)(ii) of the Cenvat Credit Rules, 2004. The appellants maintained that the place where the actual delivery of goods occurs, transferring property to the buyer, should be considered the "place of removal," thus making the transportation service eligible for Cenvat credit.

The Tribunal referred to various Board Circulars and judicial pronouncements to interpret the "place of removal." It concluded that the place where the property in goods is transferred under the Sale of Goods Act, 1930, is the "place of removal." Therefore, the service tax paid on transportation to the buyer's location, as per the contract terms, qualifies for Cenvat credit both before and after 01.04.2008.

Conclusion:

The Tribunal answered both questions in favor of the appellants, allowing Cenvat credit for the service tax paid on transportation to the port of export and the buyer's location as per the contract terms. The adjudicating authorities were directed to dispose of the claims accordingly, providing a fair hearing and examining relevant evidence. No penalties were imposed, and all appeals were remanded for further action in line with the Tribunal's guidelines.