2021 (6) TMI 585 - HC - Central Excise

CENVAT Credit - input services - outward transportation services - period August, 2014 to March, 2016 - Circular bearing No.1065/4/2018-CD, dated 08.6.2018 was not considered - HELD THAT - The aspect of non-consideration of the impact of the Circular, dated 08.6.2018, is fatal to the order passed by the Appellate Tribunal. In the considered opinion of this Court, the matter requires reconsideration by the Appellate Tribunal after taking into account, the impact and effect of Circular bearing No.1065/4/2018-CD, dated 08.06.2018. The matter is remanded to the Appellate Tribunal for fresh consideration of the issue and for passing appropriate order afresh - Appeal allowed by way of remand.

Summary

Issues:
1. Validity of demand for Cenvat credit on service tax paid on outward transportation.
2. Consideration of Circular No. 1065/4/2018-CD by the Appellate Tribunal.

Issue 1: Validity of demand for Cenvat credit on service tax paid on outward transportation:
The appellant, engaged in cement manufacturing, appealed against the demand of Cenvat credit for service tax on outward transportation. The Additional Commissioner upheld the demand citing that credit is only available for service tax paid up to the place of removal, which is the factory gate in this case. The Commissioner of Appeals and the Appellate Tribunal also confirmed the demand. The appellant argued that the Tribunal did not consider Circular No. 1065/4/2018-CD, highlighting the Circular's impact on the case. The Court found the Tribunal's failure to consider the Circular as fatal to its order and remanded the matter for fresh consideration, emphasizing the need to assess the Circular's effect on the appellant's claim.

Issue 2: Consideration of Circular No. 1065/4/2018-CD by the Appellate Tribunal:
The Circular clarified the determination of the "place of removal" under the Central Excise Act, emphasizing the principle that the place of removal is linked to the point of sale at the manufacturer's premises. Exceptions were noted for FOR contracts where ownership and risk remain with the seller until delivery to the buyer. The appellant contended that the Tribunal overlooked the Circular's impact despite being informed, leading to a lack of consideration in the impugned order. The Court agreed with the appellant, highlighting the Tribunal's failure to assess the Circular's significance and directing a fresh consideration by the Tribunal, instructing a review based on the Circular's content without influence from prior observations.

In conclusion, the Court allowed the appeal, setting aside the Tribunal's order and remanding the matter for reconsideration in light of Circular No. 1065/4/2018-CD. The Court emphasized the importance of assessing the Circular's impact on the appellant's case and ensuring a fair review without being influenced by previous remarks.