2011 (2) TMI 462 - AT - Service Tax

Cenvat credit - GTA services - Rule 5 of the CENVAT Credit Rules, 2004 - Circular No. 97/8/07-STdated 23.8.2007 - In the present case, the outward transportation service used relates to goods exported - It is, therefore, clear that for a manufacturer /consignor, the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the place of removal as per the definition - In the present case, undisputedly, the ownership transfer takes place through Bill of Lading, which is issued at the port of export after loading of the goods on board the ship - Decided in favor of the assessee

Summary

Issues:
Eligibility of credit on GTA services for transporting goods from factory to port of export, refund of unutilized credit, disallowance of credit by original authority, appeal by department against Commissioner (Appeals) order, reliance on Board's Circular, ownership transfer through Bill of Lading, relevance of High Court's interim order.

Analysis:
The case involved a dispute regarding the eligibility of CENVAT credit on Goods Transport Agency (GTA) services used for transporting goods from the factory to the port of export. The respondents, manufacturers of Gherkins, exported goods on FOB basis and availed CENVAT credit on GTA services. The original authority disallowed the credit, imposed penalties, and ordered interest payment. However, the Commissioner (Appeals) set aside the original order, leading to an appeal by the department.

The department argued that the 'port of export' cannot be considered the 'place of removal,' citing a pending case before the High Court. The Tribunal noted that the Larger Bench's decision in a related case was not relied upon by the Commissioner (Appeals). The respondents claimed that the GTA services were input services based on the FOB pricing structure and ownership transfer upon obtaining the Bill of Lading. The Commissioner (Appeals) accepted this view, also referencing a judgment by the Punjab & Haryana High Court.

The Tribunal examined the Board's Circular defining 'place of removal' and its applicability to the case. It noted that the ownership transfer through Bill of Lading supported the Commissioner (Appeals)' decision. The High Court's judgment highlighted the fulfillment of conditions for considering GTA services as input services. The Tribunal concluded that the Commissioner (Appeals) decision was reasonable, emphasizing that the pending High Court order on a different case did not impact the present judgment.

Ultimately, the Tribunal rejected the department's appeal and disposed of the cross-objection supporting the Commissioner (Appeals). The decision was made after considering the submissions, records, relevant legal provisions, and precedents cited by both parties. The judgment clarified the application of CENVAT credit rules to the transportation of export goods and upheld the Commissioner (Appeals) decision based on the specific facts and legal interpretations presented in the case.