2021 (4) TMI 391 - AT - Central Excise

CENVAT Credit - GTA Services - Freight charges - goods cleared from the factory gate to the place of buyer - place of removal - HELD THAT - On an identical issue this Tribunal in the case of BHARAT FRITZ WERNER LTD. VERSUS COMMISSIONER OF CENTRAL TAX BANGALORE NORTH WEST COMMISSIONERATE 2019 (11) TMI 1050 - CESTAT BANGALORE has remanded the case back to the original authority to pass a fresh order after examining various documents for the disputed period. The case remanded back to the original authority to pass a fresh order after examining the various documents for the disputed period in the light of the Circular issued by the Board dated 08/06/2018 - appeal allowed by way of remand.

Summary

Issues:
- Disallowance of cenvat credit on outward GTA
- Interpretation of Rule 2(l) of Cenvat Credit Rules
- Definition of 'input service' and 'place of removal'
- Applicability of cenvat credit on transportation of goods up to customer's premises
- Ownership and risk of goods during transportation
- Precedents and decisions on cenvat credit eligibility
- Impact of Supreme Court and Tribunal decisions on cenvat credit

Analysis:
The appeal challenged the dismissal of the appellant's appeal against the disallowance of cenvat credit on service tax paid on freight for goods cleared from the factory gate to the buyer's place. The Assistant Commissioner's Order-in-Original disallowed a significant amount of cenvat credit and imposed penalties. The appellant argued that cenvat credit should be allowed based on the ownership and risk of goods during transportation, citing relevant legal definitions and precedents. The appellant highlighted decisions where cenvat credit on outward transportation services was allowed, emphasizing the buyer's site as the 'place of removal' for FOR sales. The appellant also referenced ongoing legal proceedings related to similar cases.

The Commissioner (Appeals) upheld the disallowance of cenvat credit, citing a Supreme Court decision and a Tribunal case. The AR defended the impugned order, referring to the Apex Court's stance post-amendment in 2008 and a subsequent Board Circular. The Tribunal noted the conflicting interpretations and remanded the case back to the original authority for a fresh examination based on the Board Circular issued in 2018. The Tribunal emphasized the need to verify factual aspects like the sale basis, freight's inclusion in the sale price, and duty payment on the freight amount. Relying on a previous decision, the Tribunal set aside the impugned order and disposed of the appeal by remanding the case for further review in line with the Board Circular.

In conclusion, the Tribunal's decision focused on the need for a fresh examination of the cenvat credit eligibility based on the legal interpretations and the Board Circular. The case was remanded to the original authority for a detailed review of the disputed period's documents, considering the legal framework and precedents cited by both parties. The Tribunal's decision aligned with the approach taken in similar cases and emphasized the importance of verifying factual aspects to determine cenvat credit entitlement.