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TMI Blog2011 (7) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... is admissible. 2. Appeals have been field by the Revenue in all these cases on the ground that credit of service tax paid on input services is available only when GTA service is used for transportation of goods up to the place of removal and in all these cases place of removal is the factory gate. Since the credit has been taken in respect of GTA services for removal of goods from the factory gate up to the buyer s premises, credit is not admissible. 3. The very same issue had come up before the Larger Bench of this Tribunal in the case of ABB Limited 2009 (15) STR 23 (Tri. LB) and Larger Bench of this Tribunal took a view that credit is admissible. The matter was carried before the Hon'ble High Court of Karnataka and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while interpreting a provision, the Court must take note of not only the express words used but also the words which are not used. If the legislature has expressly used the words 'in respect of the transportation' in a particular manner and did not choose to include within the ambit of the word 'transportation', certain aspects, having regard to the scheme of the Section, the way it is worded, it is not open to the Court to include something which the legislature deliberately did not include in the definition. If the Courts indulge in such interpretation, it amounts to re-writing the provision which is impermissible. Yet another reason for coming to such a conclusion is, in the first part of the restrictive definition 'c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, the finding recorded by the CESTAT that the phrase and expression 'activities relating to business' admittedly covers transportation upto the customer's place was entirely unnecessary. This interpretation of ours find support from the subsequent conduct on the part of the Central Government, which amended Rule 2(1)(ii). By notification No.10/2008-C.E.(N.T.) dated 1.3.2008, the words 'clearance of final products upto the place of removal' were substituted in the place of the words 'clearance of final products from the place of removal'. The intention of the legislature is thus manifest. Till such amendment, the words 'clearance from the place of removal' included transportation charges from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, it is clear that till such amendment made effective from 1.4.2008 notwithstanding the clarification issued by the Central Government by way of their circular, transportation charges incurred by the manufacturer for 'clearance of final products from the place of removal' was included in the definition of input service. Therefore, the interpretation placed by the Tribunal on the words 'activities relating to business' as including clearance of final products 'from the place of removal' which occurred already in the first part of Rule 2(1)(ii)) prior to 1.4.2008, runs counter to the language employed in the second part of the definition of 'input service' and is to that extent contrary to the legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the manufacturer for such sale and supply at the door step of the customer are subjected to service tax and therefore, it falls within the definition of 'input service'. However, the Larger Bench of the CESTAT following the aforesaid judgment held the expression 'activities relating to business' covers transportation upto the customers' place and it is an integral part of the manufacturing business and therefore, credit cannot be denied by relying on a specific coverage of outward transportation upto the place of removal in the inclusive clause. However, the interpretation placed by us on the words 'clearance of final products from the place of removal' and the subsequent amendment by notification 10/2008 CE(NT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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