2010 (6) TMI 213 - AT - Service Tax

Cenvat Credit Input Service - The lower authorities have denied the credit of Rs. 3, 01, 188/- availed by the appellant on the input service on the amount of service tax paid on the outward freight for the transportation of the goods from their factory premises up to the buyers premises. Impugned order holding that transit insurance paid by buyer of goods and ownership during transit not with appellant and credit not admissible. Issue settled by High Court in Ambuja Cements Ltd. Held that transportation undertaken by appellant for delivery of goods and ownership remained with them till delivery.

Summary

Issues:
Denial of credit on input service for outward freight on transportation of goods from factory to buyer's premises.

Analysis:

1. Definition of Input Service:
The appellant contended that the transportation from the place of removal to the customer's premises should be covered under the definition of input service. They also highlighted the amendment to the definition of input services, implying that outward transportation was covered before the said amendment. Additionally, they argued that the Goods Transport Agency service was related to their business and should be considered an 'input service.'

2. Conditions for Credit Eligibility:
The appellant referred to Board's Master Circular and argued that they satisfied all conditions for credit eligibility. They emphasized that the ownership and property of goods remained with them until delivery to the purchaser, they bore the risk of loss during transportation, and freight charges were integral to the goods' price. They delivered goods on a FOR destination basis, and the sale occurred at the customer's premises.

3. Ownership and Transit Insurance:
The Commissioner noted the judgment in Ambuja Cements Ltd. case, setting conditions for credit admissibility related to ownership, risk of loss, and integral freight charges. The appellate authority observed that the transit insurance by buyers indicated a change in ownership during transit. However, the appellant argued that they remained the owners based on purchase orders and evidence regarding Reliance Industries Ltd.

4. High Court Precedent and Ownership:
The judgment referred to the Ambuja Cements Ltd. case, concluding that ownership during transit was crucial for credit availability. It was established that the transportation was undertaken by the appellant for delivering goods to customers' premises, and ownership remained with the appellant until delivery. The terms of delivery and responsibility for loss or damage supported the appellant's ownership claim.

5. Limitation and Allegations:
The judgment highlighted that the issue had been subject to various tribunal decisions, indicating ambiguity. The appellant was not accused of suppression or misstatements, and the demand raised beyond the normal limitation period was considered barred by limitation. The appellant's genuine belief in credit eligibility, given the unclear nature of the issue, was acknowledged.

6. Conclusion:
Considering the arguments presented, the judgment set aside the impugned order and allowed the appeal, granting consequential relief to the appellant. The decision was based on the ownership of goods during transportation, fulfillment of credit eligibility conditions, and the absence of allegations of suppression or misstatements by the appellant.