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2018 (5) TMI 293 - AT - Central ExciseCENVAT credit - input services - outward freight for transportation of gases from factory gate to buyers premises - whether the appellant is eligible for input service credit on outward transportation of their final product from their factory to buyers premises? - Held that - Since the period in the present case is prior to 11.07.2014, the definition of place of removal inserted in the Cenvat Credit Rules, 2004 and the circulars issued in the specific context of the newly introduced definition cannot be applied because during the period prior to 11.07.2014, the definition of place of removal mentioned in Section 4 of the Central Excise Act, 1944 was applicable. The above arrangement is purely provisional arrangement considering special nature of goods and finalization of Daily Stock Account at the point of clearance from the factory itself indicates that the place of removal is the factory gate. As the Cenvat credit is allowed upto the factory gate, after 2008 amendment made effective from 1.3.2008, hence, the amended rule is applicable in the present case - demand of service tax with interest upheld. Penalty - Held that - the penalty under Section 11AC is not justified as the elements of Section 11AC do not exist in the present case - penalty set aside. Appeal allowed in part.
Issues Involved:
1. Eligibility for input service credit on outward transportation. 2. Applicability of CBEC circulars and amendments. 3. Interpretation of 'place of removal.' 4. Application of Supreme Court judgments. 5. Justification for penalty under Section 11AC. Issue-wise Analysis: 1. Eligibility for Input Service Credit on Outward Transportation: The primary issue was whether the appellant was eligible for input service credit on outward transportation of their final product from the factory to the buyer's premises. The appellant argued that due to the special procedure for transporting liquid gases, the place of removal was the buyer's premises. They relied on several CBEC circulars and previous favorable judgments to support their claim. However, the Tribunal referenced the Supreme Court's judgment in Ultra Tech Cement Ltd., which clarified that post-amendment (effective from March 1, 2008), the definition of 'input service' in the Cenvat Credit Rules, 2004, limits credit eligibility to services used up to the place of removal, not beyond. 2. Applicability of CBEC Circulars and Amendments: The appellant cited CBEC Circular No. 97/8/2007-ST dated August 23, 2007, and subsequent circulars dated October 20, 2014, and February 28, 2015. The Tribunal noted that the 2007 circular pertained to the pre-amendment regime and was not applicable post-2008 amendment. The 2014 and 2015 circulars were also deemed inapplicable as they were issued after the definition of 'place of removal' was inserted in the Cenvat Credit Rules, which was effective from July 11, 2014. The period in question (March 2011 to September 2012) fell before this insertion, making the definition in Section 4 of the Central Excise Act, 1944, applicable instead. 3. Interpretation of 'Place of Removal': The Tribunal emphasized that the special procedure for removal of gases, which included a pass-out document system, indicated that the place of removal was the factory gate. This was based on the finalization of the Daily Stock Account at the point of clearance from the factory. The Tribunal concluded that the amended rule effective from March 1, 2008, applied, and thus, Cenvat credit was only allowable up to the factory gate. 4. Application of Supreme Court Judgments: The Tribunal extensively referenced the Supreme Court's judgment in Ultra Tech Cement Ltd., which held that post-amendment, Cenvat credit on goods transport agency service for transport from the place of removal to the buyer's premises was not admissible. The appellant's argument that the judgment did not consider their specific procedure was dismissed, as the Supreme Court's ruling was deemed directly applicable to the post-2008 amendment scenario. 5. Justification for Penalty under Section 11AC: The Tribunal found merit in the appellant's claim of a bona fide belief that they were entitled to input service credit on outward transportation. This belief was supported by favorable orders in their own case and their sister unit's case, as well as a previous Tribunal judgment. Consequently, the Tribunal held that the elements required for imposing a penalty under Section 11AC did not exist in this case and set aside the penalty. Conclusion: (i) The demand for Cenvat credit and the interest thereon was upheld. (ii) The penalty imposed under Section 11AC was set aside. The appeal was disposed of in these terms.
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