9911796707
TMI Blog2009 (2) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... er interest ought to have been demanded in the present case?" 2. Brief facts of the case necessary for deciding the questions of law raised before us are that the assessee M/s. Ambuja Cements Ltd. is a private limited company incorporated under the Companies Act, 1956. It is engaged in the business of manufacturing and selling of cement which is a excisable commodity classified in Chapter 25 of the 1st Schedule appended to the Central Excise Tariff Act, 1985. One of its factory is located in District Ropar within the jurisdiction of this Court. The appellant has claimed that it has been paying central excise duty at the appropriate rate in respect of cement produced by it and there is no dispute in that regard. The assessee also claimed that when it supplies cement to its customers "FOR destination" it bears the freight in respect thereof up to the door steps of the customer that is the destination point. On the afore-mentioned freight the assessee also bears the service tax which has remained undisputed. On that basis the assessee has asserted that once service tax is paid by it then it becomes entitled to take Cenvat credit of such service tax in accordance with the Cenvat Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee has drawn our attention to Rule 2(l)(ii) of the CC Rules which defines input service. Learned counsel has emphasised that the inclusive definition of 'input service' given in Rule 2(l)(ii) of the CC Rules shows that it would include inward transportation of goods or capital goods for onward transportation up to the place of removal. 4. He has further argued that the words and expression used in CC Rules and not defined but are defined in the 1944 Act or the Finance Act, 1994 (for brevity, 'the 1994 Act') are to have the meaning respectively assigned to them in those enactments. In that regard reliance has been placed on Rule 2(t) of the CC Rules. On that basis it has been submitted that the expression "place of removal" used in Rule 2(l)(ii) of the CC Rules has to be assigned the meaning given to that expression by Section 4(3)(c) of the 1944 Act. Learned counsel has emphasised that 'place of removal' means as per the provisions of Section 4(3)(c)(iii) a depot, a premises of consignment agent or any other place or premises from where excisable goods are to be sold after their clearance from the factory. 5. He has then argued that Board's Circular No. 97/6/2007-ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax on the value of goods transported by it by road. The Central Board of Excise and Customs (CBEC) has issued a circular dated 23-8-2007 dealing with the issue concerning 'up to what stage manufacturer/consigner could take credit on the service tax paid on goods transported by it by road'. The issue, in fact, has emerged out of the order of the Tribunal passed in the case of the appellant itself. The Board has opined that the phrase 'place of removal' has to be determined by taking into account the facts of each case. According to the circular, the expression 'place of removal' has been defined by Section 4 of the 1944 Act and according to sub-rule (t) of Rule 2 of the CC Rules, if any words or expression used in those rules are not defined but are defined in the 1944 Act or the 1994 Act then they are to be given the same meaning for the CC Rules as assigned to them in those Acts. Accordingly, reliance on Section 4 of the 1944 Act has been made where place of removal has been defined as under:- "place of removal" means- (i) a factory or any other place or premises of production or manufacture of the excisable goods; (ii) a warehouse or any other place or premises wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the abovesaid pronouncements of this Court that, apart from the fact that the Circulars issued by the Board are binding on the Department, the Department is precluded from challenging the correctness of the said Circulars even on the ground of the same being inconsistent with the statutory provision. The ratio of the judgment of this Court further precludes the right of the Department to file an appeal against the correctness of the binding nature of the Circulars. Therefore, it is clear that so far as the Department is concerned, whatever action' it has to take, the same will have to be consistent with the Circular which is in force at the relevant point of time." 10. It is, thus, evident that the revenue is precluded from challenging the correctness of the circular even on the ground of the same being inconsistent with statutory provisions. It goes further to limit the right of the revenue to file an appeal against the correctness of the binding nature of the circular. Therefore, there is no escape from the conclusion that the circular is binding on the revenue. 11. The only question then is whether the appellant fulfills the requirement of circular. The first requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
