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TMI Blog2015 (1) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are engaged in the manufacture of Articles of Plastic falling under Chapter No. 39 of the Central Excise Tariff Act, 1985. They were also availing Cenvat Credit facility of duty paid on the inputs & input services. The scrutiny of the appellant's records for the period January, 2005 to March, 2007 revealed that they took credit of service tax paid on outward transportation (transportation of the appellant's final products from their factory to the buyer's premises). According to the department, such services of outward transportation are not covered under the definition of 'input service' under Rule 2 (1) of the Cenvat Credit Rules, 2004. Therefore, the appellants were required to pay service tax of Rs. 1,47, 108/- including ed. Cess on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax was to be paid on each and every amount of freight or only in cases where freight amount was not less than Rs. 1500/-. 7. Ld. Counsel pointed out that credit was taken on the basis of definition of inputs service in Cenvat Credit Rule during the relevant time. He further submitted that admissibility and the credit was subjected to different interpretations at various levels and ultimately Larger Bench of CESTAT vide their order in the case of ABB resolved the issue in the favour of assessee. Admissibility of the credit allowed by the Larger Bench of Tribunal was upheld by the Hon'ble High Court of Karnataka in the case of CCE & ST, LTU, Bangalore Vs. ABB Ltd.-2011 (23) STR 97 (Kar.). However, there was an amendment made in sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , ld. Counsel submitted that since issue was open to various interpretations, invocation of extended period was not sustainable. It is settled legal position that where issue is ultimately resolved by the Larger Bench, the benefit cannot be denied for the period prior to passing of the Larger Bench decision. He also submitted that it was not the case of clandestine activity. Issue involved was of interpretation. It was contended that no imposition of penalty was warranted in this case. 9. On the other hand, ld. DR, Sh. R.K. Mishra, submitted that show cause notice issued on 18/12/2009 was within one year from the date of receipt of party's reply and was not time barred. He further submitted that Adjudicating Authority has fairly discussed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of final products upto the place of removal, and includes services used in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal; The expression 'outward transportation upto place of removal' used in the above definition of 'input service' under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transportation charges; thus, they (appellants) were responsible for the delivery of the goods to the buyer's premises; this fact indicates that the sale/delivery of the goods was on the FOR basis and therefore, the credit of service tax on such service of outward transportation is admissible to the appellants. However, the appellants could not adduce any evidence of FOR destination sale viz. copy of the relevant agreement entered into between appellants and the concerned buyers, sale invoices etc. Further, with regard to the appellant's said contention, I place reliance on the Hon'ble CESTAT's recent judgement in the case of Lafarge India (P) Ltd.-2011 (22) STR 603 (Tri.-Del.) involving a similar issue of the assessee's claim of sale/deliv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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