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TMI Blog2016 (9) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 4A, hence the place of removal ought to be considered as factory gate, relying on the judgment of this Tribunal in Ultratech Cement Ltd case, cannot be considered a good law, as the said judgment was not accepted by Hon'ble Chhatisgarh High Court in their order dt.05.08.2014 reported as Ultratech Cement Ltd. Vs. Commissioner of Central Excise, Raipur [2014 (8) TMI 788 - CHHATTISGARH HIGH COURT]. Besides, the said judgment was rendered relating to the period 2009, that is, after amendment to the definition of input service w.e.f. 01.4.2008. Also, it is crystal clear from the judgment of the Hon'ble Gujrat High Court in CCE Vs Parth Poly Wooven Pvt. Ltd. [2011 (4) TMI 975 - GUJARAT HIGH COURT] that cenvat credit on GTA service(out ward freight) from the place of removal to the purchaser s premises prior to 01.04.2008 was admissible. Interpreting the scope of means & includes employed in the definition of input service as was in existence prior to 01.04.2008. - Decided against the Revenue - E/1061/2007-SMC, E/1062/2007-SMC, E/648/2008-SMC, E / 59 / 2010-SMC, E / 60 / 2010-SMC - Order No. A/10793-10797/2016 - Dated:- 31-8-2016 - Hon ble Dr. D.M. Misra, Member (Judicial) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee by setting aside the orders of the Adjudicating Authority. Hence, Revenue is in appeal. 4. The learned Advocate Ms.Apana Hirangadi submitted that under an agreement between the Assessee and M/s PPPL in the year 2001, the Assessee had been manufacturing the Biscuits with brand name Parle from the raw materials and packaging materials supplied by M/s PPPL. It is stipulated in the said agreement that the Assessee would be required to deliver the manufactured biscuits at various depots of M/s Parle Products Pvt. Ltd located all over the country and also they were required to pay Excise duty on the price declared by M/s PPPL. In compliance with the conditions of Notification No.36/2001 CE(NT) dt. 26.06.2001 an authorization and joint declaration dt.15.09.2001 enclosing therewith the copy job work agreement was addressed to the Superintendent, Central Excise, Range-I, Division-I, Ahmedabad. She has submitted that the learned Commissioner (Appeals) erred in observing that since the Assessee had manufactured the goods on job work basis and cleared the goods at the factory gate only since the depots were belonging to M/s PPPL Pvt. Ltd, hence the CENVAT Credit on Service Tax paid on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd is not eligible as CENVAT Credit to the assesse-appellant. 6. In her rejoinder, the learned Advocate for the Assessee has submitted that since the period involved in Kohinoor Biscuit Product s case was November 2009 to October 2011, i.e. after amendment to the definition of input service prescribed under Rule 2(l) of CENVAT Credit Rules 2004, hence, the said judgment is not applicable to the facts of the present case. Also, she has submitted that the decision of the Kohinoor Biscuit Products case rests on the decision of the Tribunal in the case of M/s Ultratech Cement Ltd Vs CCE Raipur 2014 (35) STR 751 (Tribunal), which was challenged before the Hon'ble Chhatisgarh High Court and the Hon'ble High Court in their judgment, dt.05.08.2014, reported at 2014 (35) STR 641 (Chhatisgarh), held that the place of removal has to be decided in the facts and circumstances of each case, hence, the presumption of the Tribunal that place of removal is factory gate in the case of Excise duty charged at specific rate, is incorrect. 7. I have carefully considered the submissions advanced by both sides and perused the records. The dispute which needs to be addressed is: whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuits to the place of removal. As such, in view of Rule 3 of Cenvat Credit Rules the appellant has rightly availed Cenvat credit. 8. I find that there is an arrangement/agreement between the Assessee and M/s Parle Products Pvt. Ltd had been in existence for manufacture of biscuits on job work basis and transportation of the manufactured biscuits to their various depots. Therefore, the aforesaid judgment is squarely applicable to the facts of the case. . I also find that the duty paid on input raw materials and packaging materials by M/s PPPL which was supplied for conversion into biscuits were availed as credit by the assessee and there is no dispute in this regard. I find force in the argument of the Ld. Adv. that the basis on which Kohinoor Biscuits case was rendered by the Division Bench of this Tribunal, that since the biscuits are assessable to Section 4A, hence the place of removal ought to be considered as factory gate, relying on the judgment of this Tribunal in Ultratech Cement Ltd case, cannot be considered a good law, as the said judgment was not accepted by Hon'ble Chhatisgarh High Court in their order dt.05.08.2014 reported as Ultratech Cement Ltd. Vs. Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service on the basis of any interpretation that may be offered of the later portion of the definition which is couched in the expression includes . As already observed, it is held in several decisions that the expression includes cannot be used to oust any activity from the main body of the definition if it is otherwise covered by the expression means . In other words, the expression includes followed by means in any definition is generally understood to be expanding the definition of the term to make it exhaustive, but in no manner can the expression includes be utilized to limit the scope of definition provided in the main body of the definition. To our mind this was also not the intention of the Legislature in the present case. 20. There, of course, are certain areas which still remain to be cleared. It was vehemently contended before us by the counsel for the Revenue that later portion of the definition which provides for the inclusion clause limits the outward transportation service up to the place of removal. That being so, according to them, the outward transport service utilized by the manufacturer beyond the place of removal would not qualify as an input service with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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