2017 (2) TMI 892 - AT - Central Excise

CENVAT credit - transportation services used for transportation of clinker transferred by the party to their sister unit - Held that - The goods viz. clinker is to be transported from party s premises to their sister unit premises and the respondent viz. Lafarge India Pvt. Ltd. is not taking any consideration for the same as Jojobera unit being their sister unit - It is clear that the definition place of removal is inextricably linked with the fact of sale . When present facts do not involve any sale, one cannot say that the factory premises of the appellant is the place of removal - credit allowed - appeal dismissed - decided against Revenue.

Summary

Issues:
- Admissibility of Cenvat credit on transportation services for clinker transfer to sister unit

Analysis:
The Revenue appealed against the disallowance of Cenvat credit amounting to &8377; 5,57,224/- in the Order-in-Original No.14/2009. The central issue revolved around the admissibility of Cenvat credit on transportation services used for transferring clinker to the sister unit, M/s Lafarge India Pvt. Ltd., Jojobera. The Revenue contended that the premises of the sister unit could not be considered as the 'place of removal' for clinker, as it was not sold but used in cement manufacturing. They argued that the 'place of removal' should be the factory of production itself, as per the definition under the Central Excise Act, 1944.

The respondent, represented by an advocate, countered the Revenue's arguments by emphasizing that the transfer of clinker did not constitute a sale, and there was no transfer of title or removal of goods out of control. They cited various case laws to support their stance, highlighting that the 'place of removal' should be seen in the context of sale where the title passes. They argued that stock transfer and sale should not be equated, and the transaction was revenue-neutral as the transportation cost was an input service for the sister unit's cement manufacturing.

After considering the submissions from both sides and the relevant case laws, the Tribunal concluded that there was no sale involved in the transfer of clinker to the sister unit. Since the ownership of goods remained with the seller and there was no consideration involved, the 'place of removal' was deemed to be the sister unit premises. The Tribunal dismissed the Revenue's appeal, upholding the impugned order and allowing the admissibility of Cenvat credit on transportation services for clinker transfer.

In summary, the judgment focused on the interpretation of 'place of removal' in the context of Cenvat credit eligibility for transportation services in non-sale transactions. The Tribunal clarified that in cases where there is no sale, the 'place of removal' should be determined based on ownership and control of goods, rather than traditional sale principles. The decision underscored the importance of considering the specific circumstances of each case to determine the admissibility of Cenvat credit on transportation services.