9911796707
TMI Blog2007 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant is also entitled to Cenvat credit in regard to excise duty and service tax paid on input materials and input services. The appellant is also availing itself of that benefit. 2.The dispute in the present appeal is in regard to service tax paid on the freight incurred on the transportation of cement sold by the appellant. The sale is on FOR destination basis and freight is paid by the appellant. The appellant also pays the service tax in regard to the said freight. It claimed input service credit in respect of the service tax so paid. That claim was rejected by the Central Excise. The present appeal is directed against the order of Commissioner of Central Excise rejecting the claim for Cenvat credit. 3.There is no dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of removal." (emphasis added) 6.The contention of learned Counsel for the appellant is that under the general definition in Sl. No.(ii) "any service used by the manufacturer in relation to clearance of final products from the place of removal" is eligible for input service credit. The contention is that transportation of goods from the place of removal to the buyers premises remains covered by the expression "Clearance from the place of removal" and thus, credit is specifically provided for in respect of service tax paid on transport to buyers. It is also being contended that the mention of 'outward transportation upto the place of removal' in inclusion clause of the definition does not have any effect on the claim of the appellant as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Tribunal held in both the cases that cost of transportation cannot form part of 'clearance'. It is being contended that the present dispute remains settled by these decisions of the Tribunal and the appeal is required to be rejected. 10.In regard to the principle governing the interpretation of a main definition and its attendant inclusion clause, the learned SDR pointed out that it is well settled that inclusions clause casts its shadhow on the main definition also and this warranted the joint consideration of the main definition and its inclusion clause. Reliance in this regard is placed on the judgment of the Supreme Court in the case of Reserve Bank of India v. Peerless Co. reported in (1987) 1 SCC. Reference in particular is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court's construction. 34. We have already referred to the Bhabatosh and Raj Study Groups' Report, and recommendations. In Para 6.3 of the latter report the two common and basic features of prize chits by whatever name known were identified as the giving of prizes to the lucky ones and the refunding of subscription to everyone. These prize chits by whatever name known were recommended to be banned. It was this recommendation that was accepted by the Parliament in enacting the Prize Chits and Money Circulation Schemes (Banning) Act. If this much is borne in mind it becomes evident that the two requirements mentioned in the two clauses (i) and (ii) of the definition are not to be read disjunctively ; they are two distinct attributes of 'Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied. There is nothing in the text which makes it imperative that it be read otherwise. The learned counsel urges that the expression "all or any of the following purposes" indicates that the purpose may be either the one mentioned in (i) or the one mentioned in (ii). We do not agree with this submission. Each of the clauses (i) and (ii) contains a number of alternatives and it is to those several alternatives that the expression "all or any of the following purposes" refers and not to (i) or (ii) which are not alternatives at all. In fact, a Prize Chit, by whatever name it may be called, does not contemplate the exhaustion of the entire fund by the giving of prizes; it invariably provides for a refund of the amount of subscription, less t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheme of Cenvat Credit Rules. 13.The interpretation sought to be placed by the appellant does not flow from the definition of input service (reproduced in Para 5). The main clause in the definition states that the service in regard to which credit of tax is sought, should be used in or in relation to clearance of the final products from the place of removal." The learned SDR has brought to our notice the decisions of this Tribunal to the effect that transport does not come within the scope of clearance or forwarding. Further, that transportation (freight) is an entirely different activity from manufacture remains settled by the judgments of Hon'ble Supreme Court in the cases of Bombay Tyre International - 1983 (14) E.L.T. 1896 (S.C.), In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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