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TMI Blog2019 (6) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Hyderabad held that Service Tax and Excise Duty are consumption taxes to be borne by the consumer and therefore if credit is denied on transportation service the levy of service tax on transportation will become a tax on business rather than being a consumption tax. The Tribunal observed that the submission of the Revenue that the CENVAT credit cannot be allowed for service if the value thereof does not form part of the value subjected to excise duty runs counter to the fundamental concept of Service Tax. Considering the fundamental concept of Service Tax, it cannot be said that Cenvat credit cannot be allowed for service if the value thereof does not form part of the value subjected to Excise duty. Appeal allowed - decided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax paid on Haulage charges to Haldia Dock Complex for clearance of their final products beyond the place of removal was availed and utilised for payment of duty on their manufactured excisable goods. He also submits that the major part of the demand is barred by limitation and extended period cannot be invoked since there is no intention to evade payment of duty as the appellant is a public sector undertaking. 3. Ld. D.R. reiterates the impugned order. 4. Heard both sides and perused the appeal records. 5. We observe that : 1. Rule 2 defines input service means any service- (i)......... (ii) Used by the manufacturer, whether directly or indire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of fulfilling three conditions, namely, (a) the ownership of goods and the property of the goods remained with the seller of the goods till the delivery of goods in acceptable condition to the purchaser at his door step; (b) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (c) the freight charges were n integral part of the price of goods. 7. We also observe that in the instant case, M/s IOC, Haldia Refinery used to remove their petroleum products both on Stock Transfer basis as well as on sale basis. In case of removal of products on Stock Transfer basis to Terminals/Depots the ownership, risk of loss or damage of the goods during the transit remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court held that since the ownership of the goods passed on to the purchaser at the door step of the purchaser, the seller bear the risk of loss or damage to the goods during the transit to the destination and the delivery of the goods is FOR destination price, the assessee will be entitled to the benefit of cenvat credit of service tax paid on outward transportation. 9. The CESTAT larger Bench at Bangalore in its Order 2009-TIOL-830- CESTAT-Bang-LB has held that Services received for outward transportation of goods from the place of removal is input service as defined in Rule 2 (I) of the CENVAT Credit Rules, 2004. The Larger Bench held that transportation of goods to customer s premises is an activity relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts from the place of removal and the subsequent amendment by notification 10/2008 CE (NT) dated 1.3.2008 substituting the word from in the said phrase in place of upto makes it clear that transportation charges were included in the phrase clearance from the place of removal upto the date of the said substitution. 11. The Hon ble Apex Court in the case of M/S. VASAVADATTA CEMENTS LTD. [2018-TIOL-90-SC-CX) held that tax paid on the transportation of the final product from the place of removal upto the first point, whether it is depot for the customer, has to be allowed. The Hon ble Apex Court held that the approach of the Full Bench of the CESTAT in the case of M/s. ABB Ltd. cited at 2009-TIOL-830-CESTAT-BANG-LB, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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