2018 (5) TMI 198 - AT - Central Excise

CENVAT credit - input services - outward transportation service beyond the place of removal - Held that - the finding of the Commissioner (Appeals) is entirely based on the premise that the party cleared the goods at the factory gate - Clearly, breakdown given by the appellant in the letter dated 11.5.2012 has not been considered by the Commissioner (Appeals). The adjudicating authority has reached its conclusions on the basis of Board s circular No.97/8/2007-ST dated 23.08.2007. The said circular has been held to be inapplicable for the period after 1.4.2008 by Hon ble Supreme Court in the case of Ultra Tech Cement 2018 (2) TMI 117 - SUPREME COURT OF INDIA . Demand and interest upheld - penalty set aside - For the remaining demand, the matter is remanded back to the adjudicating authority to pass a fresh order - appeal disposed off.

Summary

Issues:
Demand of Cenvat credit on outward transportation service, Admissibility of Cenvat credit breakdown, Interpretation of judgments by appellate authorities, Consideration of factual submissions by appellant, Applicability of Board's circular on Cenvat credit.

Analysis:
The case involves a manufacturer of pressure cookers facing a demand for Cenvat credit on outward transportation service beyond the place of removal. The appellant contended that certain breakdowns of service tax were not considered by the adjudicating authority and the first appellate authority. They argued that specific Cenvat credits were admissible to them, supported by invoices. The Commissioner (Appeals) based her decision on erroneous facts, failing to consider the breakdown submitted by the appellant.

The Revenue argued against the admissibility of Cenvat credit for transportation services to dealer premises and the Thane factory for export. They referenced judgments by the Hon'ble Supreme Court to support their position and highlighted the need for verifying the invoices submitted by the appellant.

Upon examination, the Tribunal found that the breakdown of Cenvat credit provided by the appellant was not adequately considered by the lower authorities. The judgment of the Hon'ble Supreme Court in a related case was deemed relevant, indicating errors in the decisions made based on a circular that was held inapplicable post a specific date. The Tribunal directed a re-examination by the lower authorities, emphasizing the importance of considering the breakdown, relevant judgments, and submitted invoices.

The Tribunal upheld the Commissioner (Appeals) decision on certain categories where the appellant did not contest the demand. However, for the remaining demand, the matter was remanded back to the adjudicating authority for a fresh order, with instructions to provide a fair opportunity for the appellant to defend their case. The penalty was not imposed due to the appellant's bonafide belief in the admissibility of Cenvat credit. The appeal was disposed of accordingly.