2018 (4) TMI 891 - AT - Central Excise

CENVAT credit - outward freight from their factory to the place of buyer - time limitation - Held that - the issue of CENVAT credit with respect to input service of transportation, with respect to clearance of final products from the factory gate to the premises of the buyer has been a contactitious issue during the relevant period - there is no contribution conduct and suppression of fact etc. on the part of the appellant as is evident from the faith of the show cause notice. The SCN is not maintainable as it has been issued for different period of limitation and accordingly will not apply for the normal period - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Allowability of service tax on outward freight
2. Validity of show cause notice invoking extended period of limitation

Issue 1: Allowability of service tax on outward freight
The appellant, a manufacturer of SS Pipes and Tubes, paid service tax on outward freight from their factory to the buyer's location. The show cause notice alleged that the appellant willfully suppressed facts to evade duty by availing Cenvat credit on service tax paid on outward freight. The appellant contended that they correctly availed the credit as the freight charges were an input service. The show cause notice disallowed the credit and imposed a penalty, which was confirmed by the Commissioner (Appeals).

Issue 2: Validity of show cause notice invoking extended period of limitation
The appellant argued that the show cause notice was issued invoking the extended period of limitation, which was not applicable due to an amendment in the definition of input service from "from the place of removal" to "upto the place of removal" w.e.f. 01/04/2008. The appellant relied on the ruling of the Larger Bench of the Tribunal and the Hon'ble Karnataka High Court, which held that Cenvat credit on transportation charges did not require the freight to be included in the transaction value of goods. The appellant contended that the show cause notice was time-barred based on the provisions of the Finance Act, 2013. The Tribunal found that there was no contributory conduct or suppression of facts by the appellant, and the show cause notice was not maintainable for the extended period of limitation.

In conclusion, the Tribunal allowed the appeal, setting aside the impugned order. The appellant was entitled to consequential benefits in accordance with the law.