2018 (2) TMI 790 - AT - Central Excise

Valuation - includibility - freight element - Held that - the goods were cleared on ex factory basis and no central excise duty has been paid on the freight element - From the order of the adjudicating authority, it is evident that it has applied the Board circular dated 23.8.2007 incorrectly because on one hand there is a finding given that the goods have been cleared on ex factory basis and on the other it has proceeded to examine the three conditions in the said circular which relate only where the place of removal is not the factory gate. Since the facts need to be amply clear and accordingly the law has to be applied, the order of the Commissioner (Appeals) remanding the matter to the adjudicating authority is modified to the extent that the adjudicating authority would bring out the relevant facts clearly and pass a fresh order in accordance with law - appeal allowed by way of remand.

Summary

Issues:
- Admissibility of input service credit on outward transportation of finished goods
- Validity of demand raised along with interest and penalty under Cenvat Credit Rules, 2004
- Commissioner (Appeals) remanding the matter for lack of documentary evidence
- Appellant's appeal challenging the remand order and citing discrepancies in facts

Admissibility of Input Service Credit:
The appellant availed input service credit on outward transportation of finished goods up to customers' premises. A show cause notice was issued, alleging inadmissibility of credit without supporting documents. The issue revolved around whether the findings of the adjudicating authority regarding freight charges were valid. The Commissioner (Appeals) remanded the matter, emphasizing the need for documentary evidence to verify the claims. The appellant contended that the facts were misrepresented in the order and cited relevant case laws not considered by the Commissioner (Appeals).

Validity of Demand and Penalty:
The demand raised, along with interest and penalty under Cenvat Credit Rules, was confirmed by the adjudicating authority. However, the Commissioner (Appeals) remanded the case due to insufficient evidence and lack of clarity regarding the freight charges. The appellant challenged the remand order, highlighting discrepancies in the facts presented and the failure to address relevant case laws in the appeal process.

Commissioner (Appeals) Remand Order:
The Commissioner (Appeals) remanded the case to the adjudicating authority, stressing the importance of documentary evidence to support the appellant's claims. The need for clear verification of facts and adherence to legal principles, including consideration of relevant case laws, was emphasized. The appellant raised concerns about the misrepresented facts in the order and the failure to address key case laws in the appeal process.

Appellant's Appeal and Disposition:
Both parties agreed that the goods were cleared on an ex-factory basis without central excise duty paid on the freight element. The adjudicating authority and the Commissioner (Appeals) were found to have misapplied legal principles and failed to consider crucial judgments relied upon by the appellant. The appellate tribunal modified the remand order, directing the adjudicating authority to clarify the facts and issue a fresh order in compliance with the law and pertinent High Court judgments, ensuring a fair opportunity for the appellant to present their case.

This detailed analysis of the judgment underscores the complexities surrounding the admissibility of input service credit, the validity of demands and penalties under Cenvat Credit Rules, the significance of documentary evidence in legal proceedings, and the importance of addressing discrepancies and considering relevant case laws in appellate processes.