2019 (2) TMI 1487 - AT - Central Excise

CENVAT Credit - service tax paid on outward transportation - place of removal - demand was confirmed by the adjudicating authority holding that the credit of GTA service is available on input service only up to place of removal after 01.04.2008 in terms of Rule 2 (I) of Cenvat Credit Rules, 2004 - issue under litigation - extended period of limitation - Held that - The Appellant are clearing their goods on MRP basis in case of clearance from their depot/ stockists or to their customers and in case of sale to institutional consumers the goods are being cleared by them by adopting the valuation of the goods in terms of Section 4. The Appellants have annexed copies of excise invoice cum gate pass which shows that the prices are inclusive of freight and insurance and nothing extra has been charged. The goods are being cleared on FOR basis and all liabilities in respect of transportation of goods or damage to goods were on account of Appellants. They were liable for safe delivery of goods upto their customers doorstep. In such case when the sale of the goods is completed at the doorstep of the Customer or depot/ stockist as the case may be the point of sale shall be such doorstep. The Chartered/ Cost Accountant has certified that the goods were sold on FOR basis by the Appellant and the freight/ damages in transit was responsibility of Appellant till the goods reaches the doorstep of the Customers - Also, the consignment notes were raised upon the Appellant and they did not charge any amount except price of the goods from the customers. Thus, as the ownership of the goods remained with the Appellants till the goods reached to the customer s doorstep and the freight charges as well as damage (insurance) to the goods till destination were borne by the Appellant, they are eligible for the credit of service tax paid by them on outward freight. As regard the issue raised by the appellant that the excise duty paid on the element of freight being more than the element of cenvat credit on the outward GTA, therefore, there should not be any demand. We find force in the argument of the appellant however, since we are deciding the issue on merit, the admissibility of the Cenvat Credit on outward GTA on the basis of provision under Cenvat Credit Rules itself, we need not to deal this aspect hence, the issue related to this fact left open. Time Limitation - Held that - The issue was not free from doubt and right from introduction of Cenvat Scheme under Cenvat Credit Rules, the outward GTA was the matter under litigation and for that reason the Government has to come out with clarification thereafter the matter was subject to various litigation before Tribunal, Hon ble High Courts and Hon ble Supreme Court, therefore no malafide intention can be attributed to the appellant, therefore, wherever the demand is for extended period, the same will also not be sustainable on the ground of time bar also. The Appellants are eligible for the cenvat credit of service tax paid on outward freight - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Denial of Cenvat credit on service tax paid on outward transportation.
2. Determination of the 'place of removal' for the purpose of availing Cenvat credit.
3. Applicability of beneficial Circulars retrospectively.
4. Limitation and suppression of facts.

Issue-wise Detailed Analysis:

1. Denial of Cenvat Credit on Service Tax Paid on Outward Transportation:
The appellant, engaged in the manufacture of cement, was denied Cenvat credit on service tax paid on outward transportation by the adjudicating authority. The authority held that credit on Goods Transport Agency (GTA) service is available only up to the 'place of removal' as per Rule 2(l) of the Cenvat Credit Rules, 2004. The appellant argued that they cleared goods on a FOR (Free on Rail/Road) basis, bearing all expenses up to delivery, including freight and insurance, which were included in the invoice value. They contended that the credit should be available since the sale was completed at the buyer's doorstep.

2. Determination of the 'Place of Removal':
The appellant claimed that the 'place of removal' should be the buyer's doorstep or depot/stockist, as they bore the risk and freight charges until delivery. They relied on CBEC Circular No. 1065/4/2018-CX, which clarifies that the 'place of removal' is determined with reference to the 'point of sale.' The tribunal agreed, noting that the Chartered/Cost Accountant certified that the goods were sold on FOR basis and the appellant bore the freight and damages until delivery. The tribunal cited the Supreme Court's judgment in CCE & CU Vs. Roofit Industries Ltd., which held that freight paid on outward transportation qualifies as 'Input Service' when goods are cleared on FOR basis.

3. Applicability of Beneficial Circulars Retrospectively:
The appellant argued that they operated under the guidelines of Circulars dated 22.12.2014 and 23.08.2007, which were operative during the relevant period. They contended that the withdrawal of these Circulars in 2018 should not have retrospective effect. The tribunal agreed, citing the Supreme Court's judgment in Suchitra Vs. CCE, which held that beneficial Circulars should be applied retrospectively while oppressive Circulars apply prospectively.

4. Limitation and Suppression of Facts:
The appellant contended that the demand was hit by limitation as there was no suppression of facts. They argued that the issue of admissibility of Cenvat credit on outward GTA was a matter of grave litigation across various judicial forums. The tribunal agreed, noting that the issue was not free from doubt and had been subject to various litigations. Consequently, no malafide intention could be attributed to the appellant, and demands for the extended period were unsustainable on the grounds of time bar.

Conclusion:
The tribunal held that the appellants were eligible for the Cenvat credit of service tax paid on outward freight. The impugned order was set aside, and the appeal was allowed with consequential reliefs. The tribunal emphasized that beneficial Circulars should be applied retrospectively, and no malafide intention could be attributed to the appellant due to the ongoing litigation on the issue. The demand for the extended period was also found to be time-barred.

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