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TMI Blog2019 (1) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and freight in respect of the goods sold are borne by the appellant. Extended period of limitation - suppression of facts - Held that:- The appellants have not suppressed any fact and they have been filing return regularly and has been showing the CENVAT credit availed on various input services including the GTA services - the Service Tax paid on GTA services is admissible as credit being input service and there were decisions in favor of the appellant regarding the same issue before the decisions of the Apex Court in the case of Ultratech Cement Ltd. [2018 (2) TMI 117 - SUPREME COURT OF INDIA] - the demand beyond the normal period of limitation is set aside as there was no intention to evade payment of duty. Penalty - Held that: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailed CENVAT credit of the same treating the GTA Service on the outward freight as input service . The total CENVAT credit availed by the appellants during the period from April 2012 to March 2015 was ₹ 3,93,919/- and for the period April 2015 to March 2016 an amount of ₹ 2,74,705/- was availed as CENVAT credit which appeared to be irregular inasmuch as only such services which were used by a manufacturer directly or indirectly, in or in relation to the manufacture of final products and clearance of final products up to the place of removal were liable to be treated as input service as per Rule 2(1) of CENVAT Credit Rules, 2004. On these Audit objection, a SCN dated 29.02.2015 was issued demanding CENVAT credit of ₹ 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 dated 22.07.2015. He also relied upon the judgment of Hon ble High Court of Karnataka rendered in the case of Madras Cements Ltd. Vs. Add. Commr. of C.Ex., Bangalore, 2015 (40) STR 645 (Kar.) wherein it was held that when it is clear from the invoices that title of the goods had passed on from the seller to buyer only at the place of destination, the buyer had no right over the goods till the same is delivered to him and the sale is concluded only after the delivery of the goods at the buyers premises. In support of this submission, he also relied upon the following cases: (i) Ambuja Cement Ltd. Vs. UOI, 2009 (236) ELT 431 (P H). (ii) Commr. of C. Ex. Vs. Rine Machine Tools, 2016 (42) STR 809 (P H). 4.1 Learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. He also submitted that suppression of facts cannot be alleged in matter involving interpretation of admissibility of CENVAT credit. He further submitted that during the impugned period, there were decisions in favour of the assessee wherein it has been held that the assessee is entitled to CENVAT credit in respect of freight outward up to the premises of the buyer and he bona fidely believed that he is entitled to avail CENVAT credit and therefore, no penalty can be imposed on the appellant. The learned counsel also submitted that the decision of the Hon ble Supreme Court in the case of Ultratech Cement Ltd. reported in 2016 (44) STR 227 is not applicable in the present case. He also submitted that after the decision of the Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts. It is for the Court to declare what the particular provision of statute says and it is not for the executive. Looked it from another angle, circular which is contrary to statutory provision has really no existence in law. 6. After considering the submissions of both the parties and perusal of the material on record and the various decisions relied upon by both the parties, I find that the appellants as per the contracts entered into between the parties, the appellants are supplying the goods on FOR basis and are availing the credit on Service Tax paid on GTA services on the ground that it falls under the definition of input service as contained in Rule 2(1) of the CCR, 2004. Further, I find that in the purchase order itself t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 4 of the Act, there is no quarrel upto this stage. However, the important aspect of the matter is that Cenvat Credit is permissible in respect of input service and the Circular relates to the unamended regime. Therefore, it cannot be applied after amendment in the definition of input service which brought about a total change. Now, the definition of place of removal and the conditions which are to be satisfied have to be in the context of upto the place of removal. It is this amendment which has made the entire difference. That aspect is not dealt with in the said Board s circular, nor it could be. 12. Secondly, if such a circular is made applicable even in respect of post amendment cases, it would be violative ..... X X X X Extracts X X X X X X X X Extracts X X X X
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