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2024 (7) TMI 680 - AT - Central ExciseCENVAT Credit - outward transportation of goods - place of removal - appellant has availed credit from 2010-2011 upto 2014 in January 2015 - Time limitation. CENVAT Credit - outward transportation of goods - place of removal - appellant has availed credit from 2010-2011 upto 2014 in January 2015 - HELD THAT - Rule 4 (7) of CCR 2004 was introduced only w.e.f. 1.9.2014. The time limit for availing the credit was introduced for the first time only from 1.9.2014. The appellant has availed accumulated credit upto December 2014 in January 2015 on invoices issued prior to 1.9.2014. The appellant has availed the credit within 6 months from the date of introduction of time limit in terms of Rule 4 (7) of CCR 2004. The said rule cannot be applied retrospectively. However, this issue is to be reconsidered by the original authority. Credit eligible on outward transportation of goods upto buyer's premises - HELD THAT - The said issue has been considered by the Larger Bench of the Tribunal in M/S. THE RAMCO CEMENTS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY 2023 (12) TMI 1332 - CESTAT CHENNAI-LB . The Larger Bench has held that in each case the place of removal has to be ascertained on the basis of documents and if the place of removal is the buyer's premises, the assessee would be eligible for credit. It is also held that the place of removal has to be ascertained by applying the judgment of the Hon'ble Supreme Court in the case of COMMISSIONER CENTRAL EXCISE, MUMBAI-III VERSUS M/S. EMCO LTD. 2015 (8) TMI 200 - SUPREME COURT and in the case of COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. 2015 (4) TMI 857 - SUPREME COURT ) as well as the decision of Hon'ble High Court of Karnataka in the case of BHARAT FRITZ WERNER LTD. AND MAPAL INDIA PRIVATE LIMITED VERSUS THE COMMISSIONER OF CENTRAL TAX, BANGALORE 2022 (7) TMI 352 - KARNATAKA HIGH COURT . The circular issued by the Board dt. 08.06.2018 also clarifies as to the ascertainment of place of removal - if the appellant has included the freight charges in the price of the finished products cleared by them, they would be eligible for credit of the service tax paid on outward transportation of finished products. Time limitation - HELD THAT - The issue being interpretational in nature, the appellant has a strong case on limitation. However, as the appeal is remanded to the adjudicating authority to decide the issue on merits, the issue of limitation also has to be considered afresh by the adjudicating authority. The appeal is allowed by way of remand.
Issues:
1. Eligibility of availing credit of service tax paid on outward transportation. 2. Consideration of buyer's premises as the place of removal. 3. Interpretation of limitation regarding availing credit. Analysis: Issue 1: The appellant availed cenvat credit on service tax paid for outward transportation beyond the place of removal. The department contended that the buyer's premises cannot be considered as the place of removal. The appellant argued that the buyer's premises should be considered as the place of removal as per the agreements and invoices. The appellant relied on the Board's Circular and previous tribunal decisions to support their claim. Issue 2: The Larger Bench of the Tribunal considered the issue of whether the buyer's premises could be considered as the place of removal. It was held that the place of removal should be ascertained based on documents, and if the freight charges were included in the price of the finished products, the appellant would be eligible for credit of service tax paid on outward transportation up to the buyer's premises. Issue 3: The appellant raised the issue of limitation, arguing that the show cause notice was issued for a period where they had not availed credit due to pending litigations. The appellant contended that the time limit for availing credit was introduced after the period in question and that they had availed the credit within the specified time frame. The tribunal acknowledged the interpretational nature of the issue and remanded it to the adjudicating authority for reconsideration along with the other issues. In conclusion, the tribunal set aside the impugned order and allowed the appeal by remanding the case to the adjudicating authority for a fresh decision on the eligibility of availing credit on outward transportation, consideration of buyer's premises as the place of removal, and interpretation of limitation regarding availing credit.
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