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2018 (11) TMI 1035 - AT - Central ExciseCENVAT Credit - input services - outward transportation charge under GTA service - place of removal - period January, 2005 to December, 2011 and July, 2013 to February, 2016 - Held that - In view of changed definition of input service after April, 2008 the appellant is liable to pay service tax as per the prevalent rate only. Penalty - Held that - The issue was mired in confusion and the issue was resolved only with the decision in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. 2018 (2) TMI 117 - SUPREME COURT OF INDIA - thus this is not a fit case to impose penalty. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Denial of Cenvat Credit on outward transportation charges under GTA service. 2. Interpretation and applicability of "place of removal" in the context of Cenvat Credit Rules, 2004. 3. Applicability of extended period of limitation for demand. Issue-wise Detailed Analysis: 1. Denial of Cenvat Credit on Outward Transportation Charges: The appellant contested the denial of Cenvat Credit for outward transportation charges under GTA service for the periods January 2005 to December 2011 and July 2013 to February 2016. The main argument was that the freight and transportation charges were borne by the appellant on an FOR (Free on Road) basis, which should qualify as "input service" under Rule 2(l) of the Cenvat Credit Rules, 2004. 2. Interpretation and Applicability of "Place of Removal": The case hinged on the interpretation of "place of removal." Up to March 2008, the definition of input service included services used "from the place of removal." This was settled in favor of the appellant by the Supreme Court in cases like CCE vs. Vasavaddatta Cement Ltd. and CC, CE & ST, Guntur vs. The Andhra Sugar Ltd. However, post-April 2008, the definition changed to "up to the place of removal," making Cenvat Credit on outward transportation beyond the place of removal inadmissible, as affirmed by the Supreme Court in CCE & ST vs. Ultratech Cement Ltd. 3. Applicability of Extended Period of Limitation: The appellant argued that the demand beyond the normal period of limitation (one year) was unsustainable due to widespread confusion and conflicting judgments on the availability of Cenvat Credit for outward transportation. They cited various judicial decisions to support the claim that there was no malafide intention. The Tribunal agreed, noting that the issue was contentious and had been settled only after the Supreme Court's decision in Ultratech Cement. Conclusion: The Tribunal concluded that for the period up to March 2008, the demand was not sustainable and should be set aside. For the period post-April 2008, the appellant was liable to pay service tax as per the prevailing rate. However, the imposition of penalties was deemed inappropriate due to the contentious nature of the issue and the absence of malafide intention. The appeals were allowed in these terms. Final Order: The appeals were allowed, with the Tribunal setting aside the demands for the period up to March 2008 and confirming the liability for the period post-April 2008 without imposing penalties. The judgment was pronounced in open court on 20.11.2018.
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