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2016 (12) TMI 1225 - AT - Central ExciseCENVAT credit - authenticity of CBEC Circular No. 97 (8)/2007-ST DATED 23/08/2007 - whether appellant will be eligible to CENVAT Credit on transportation services from the factory to the point of delivery of the customers? - Held that - Jurisdictional Kolkata High Court in the case of CCE, Kolkata Vs. Vesuvious India Ltd. 2013 (12) TMI 1025 - CALCUTTA HIGH COURT has upheld the authenticity of CBEC Circular No. 97 (8)/2007-ST DATED 23/08/2007. It is observed from para 8.2 of the said circular dated 23/8/2007 that one of the conditions for availing such credit is that seller has to bear the risk of loss or damage to the goods during transit - as per contract appellant is not responsible for any damage during transit and unloading of goods. The conditions prescribed by CBEC for availing CENVAT credit on transportation services beyond the factory are not satisfied - the contract between appellant and the customers is not on FOR destination basis - credit not allowed - appeal disposed off - decided in favor of Revenue.
Issues:
1. Eligibility of CENVAT Credit on transportation services. 2. Calculation of period of limitation for filing appeal. Eligibility of CENVAT Credit on transportation services: The appeal was filed by the Revenue against an Order-in-Appeal passed by the Commissioner (Appeals), Patna. The Revenue contended that the appellant had taken credit on outward transportation from the place of removal, and the CBEC Circular No. 137/3/2006-CX was not applicable, as held by the first appellate authority. The Revenue argued that as per the language of the contract, damages during transportation would not be the responsibility of the appellant. Referring to CBEC master circular No. 97/8/2007-ST, it was stated that if conditions are not fulfilled, CENVAT credit is not admissible. The Revenue relied on a case law from the Calcutta High Court to support their argument. On the other hand, the Respondent argued that the appeal was time-barred, citing the Apex Court decision in the case of CCE Vs. M.M. Rubber Co. The Tribunal observed that the issue was whether the appellant would be eligible for CENVAT Credit on transportation services to customers. The Tribunal rejected the Respondent's preliminary objection regarding the period of limitation, stating that it should be calculated from the date of receipt of the Order-in-Appeal passed by the first appellate authority. Calculation of period of limitation for filing appeal: The Tribunal noted that the case law cited by the Respondent pertained to suo motto review orders passed by Departmental officers under Section 35E (3) of the Central Excise Act, 1944, which was not applicable in the present case. The Tribunal clarified that the relevant date for computing the available period should be from the date of receipt of the Order-in-Appeal passed by the first appellate authority. Regarding the admissibility of CENVAT Credit, the Tribunal referred to a judgment of the Jurisdictional Kolkata High Court, which upheld the authenticity of CBEC Circular No. 97/8/2007-ST. It was observed that the conditions for availing such credit included the seller bearing the risk of loss or damage during transit, which was not the case as per the contract in question. Therefore, the Tribunal held that the conditions prescribed by CBEC for availing CENVAT credit on transportation services were not satisfied, and the appeal filed by the Revenue was allowed, with the Order-in-Original passed by the adjudicating authority being restored.
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