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TMI Blog2009 (11) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... the consolidated price – Facts of case or submission of appellants not recorded by the decision of the Larger Bench of the Tribunal in the case of ABB Ltd. v. Commissioner of Central Excise & Service Tax, Bangalore – [2009 - TMI - 34139 - CESTAT, BANGALORE]- we find that the referral Bench did not, in any way, mention ‘outward transportation’ to be a business activity nor was that a subject-matter of reference. The Larger Bench decision, on the other hand, without recording any submissions made on behalf of the appellants holds ‘outward transportation’ to be a business activity by allowing credit of service tax paid on such transportation. - This would result in accrual of no tax to the Government and undue benefit to the manufactures as he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes/consultants/authorized representatives appearing in respect of different appeals as indicated above contend that the issue involved in these appeals is decided in favour of the appellants by the decision of the Larger Bench of the Tribunal in the case of ABB Ltd. v. Commissioner of Central Excise & Service Tax, Bangalore - 2009 (15) S.T.R. 23 (Tri.-LB) and, therefore, it is their common prayer that all these appeals should be allowed following the ratio of the said Larger Bench decision. These appeals involve a total amount of Rs. 27 crores (approx.) including the penalty amount. 2. At the outset, we notice that the Larger Bench decision in ABB Ltd. (supra) does not record either the facts of the case or submissions made on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the customers is only the consolidated price and the exact freight amount and nothing separately is being recovered towards service tax on freight. 3. Shri K.S. Venkatagiri, learned advocate stated that in the case at S. No.32 above, the appellants have exported the impugned goods and hence in their case the service tax paid on transport charges up to the place of removal i.e., part of shipment requires to be allowed as credit/refunded. 4. Shri R. Parthasarathy, learned Consultant stated that in respect of his clients the benefit should be allowed even if the period after amendment of the relevant rule on 1-4-2008 in view of Paragraphs 24 and 25 of the Larger Bench order in ABB Ltd. (supra) which holds 'outward transport service' to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r states that while interpreting the rule the larger Bench has not gathered the intention of the legislature from the language used by it. He states that the decision of the Hon'ble Punjab and Haryana High Court in the case of Ambuja Cements Ltd. v. Union of India [2009 (14) S.T.R. 3 (P & H) = 2009 (236) E.L.T. 431 (P & H)] allowed service tax credit in respect of transportation where the transportation cost has been included in the value of the excisable goods and not otherwise. 6. After hearing both sides, we find that the LB decision in ABB Ltd. (supra), does not narrate the facts of the cases dealt in it. It appears to us that irrespective of different factual position prevailing in different cases, the said decision authorizes credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same are contained in two different sections of the Act. Hence the Hon'ble Supreme Court's decision to the effect that a specific provision will override a general one would very much apply in this case as grant of credit cannot be equated to grant of exemptions. 9. Moreover, we find that the referral Bench did not, in any way, mention 'outward transportation' to be a business activity nor was that a subject-matter of reference. The Larger Bench decision, on the other hand, without recording any submissions made on behalf of the appellants holds 'outward transportation' to be a business activity by allowing credit of service tax paid on such transportation. 10. In the light of the arguments from both sides and in view of our observation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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