2019 (11) TMI 1049 - AT - Central Excise

CENVAT credit - input services - outward freight - place of removal - Department alleged that since duty was discharged at factory gate point, the factory gate becomes the place of removal and the outward freight which is used for clearance of final products beyond the factory gate did not fall within the purview of definition of input service - HELD THAT - In view of the decision of the Madras High Court in the case of Bata India Limited 2019 (3) TMI 519 - MADRAS HIGH COURT and also in view of the Board Circular No. 1065/4/2018-CX dated 08/06/2018, the matter needs to be remanded to the original authority to verify certain factual aspects such as whether the sale is on FOR basis, whether the freight is integral part of the sale price, whether the duty paid on the value inclusive of freight amount etc. The matter is remanded back to the original authority to pass a fresh order after examining the various documents for the disputed period - appeal allowed by way of remand.

Summary

Issues:
- Eligibility of cenvat credit on service tax paid on outward freight
- Interpretation of 'place of removal' for availing input service credit

Eligibility of Cenvat Credit on Outward Freight:
The case involved the appellants manufacturing HDPE and PP bags, availing input service credit on service tax paid on outward freight. The Department alleged irregularity as the duty was discharged at the factory gate point, considering it as the 'place of removal.' The appellants contended they were eligible for cenvat credit up to the customer's premises post-April 2008. The appellant's counsel argued that the 'place of removal' should be where goods are transferred to buyers, citing relevant legal provisions and case laws to support their stance.

Interpretation of 'Place of Removal':
The appellant's counsel referenced several decisions to argue that if goods are sold at a location beyond the factory gate, that location should be considered the 'place of removal.' The appellant's position was supported by legal precedents emphasizing the transfer of possession for consideration as the basis for determining the 'place of removal.' Conversely, the respondent's representative defended the impugned order, relying on a Supreme Court decision and subsequent Tribunal rulings. The respondent contended that post-2008 amendments, the 'place of removal' was fixed at the factory gate, denying cenvat credit on GTA up to the buyer's premises.

Judgment and Remand:
After considering submissions and legal precedents, the Tribunal noted the Circular issued by the CBEC post the Apex Court decision in Ultratech's case, allowing reexamination of cases based on established legal principles. The Tribunal referred to the Madras High Court decision in Bata India Limited's case and the Circular No. 1065/4/2018-CX, directing a remand to the original authority for verifying factual aspects like sale basis, freight's integration with sale price, and duty payment inclusivity. Consequently, the Tribunal allowed the appeal by remanding the matter for a fresh order based on detailed examination of relevant documents for the disputed period.

Conclusion:
The Tribunal's decision to remand the case for further examination aligns with legal principles and precedents, emphasizing the need to verify factual aspects related to the eligibility of cenvat credit on service tax for transportation up to the customer's premises. The judgment underscores the importance of considering specific details and legal interpretations in determining the 'place of removal' for availing input service credit, ensuring a thorough assessment of relevant factors before reaching a final decision.