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TMI Blog2024 (2) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... . The period involved in the present appeal is prior to 01.04.2008. The issue is considered by various judgements, which are discussed hereunder, which clearly hold that, prior to 01.04.2008, the outward transportation services were specifically covered by main body of the definition of input service, which provides for means part of the definition and it is not necessary to examine the inclusive part of the definition of input services. The Hon ble Apex Court in COMMISSIONER OF CUSTOMS CENTRAL EXCISE AND SERVICE TAX, GUNTUR VERSUS M/S. THE ANDHRA SUGARS LTD. [ 2018 (2) TMI 285 - SUPREME COURT] , in paragraph 8 clearly holds that once it is accepted that the place of removal is the factory premises of the assesee, the outward transportation from the said place would clearly amount to input services. That place can be warehouse of the manufacturer or it can be customer s place if from the place of removal the goods are directly dispatched to the place of the customer. One such outbound transportation from the place of removal gets covered by the definition of input service. - the Appellant is entitled to CENVAT credit of service tax paid under RCM for transportation of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said service tax paid under RCM. However, due to prevailing ambiguity regarding the admissibility of the credit the Appellant reversed the said credit under protest. 1.1 The Appellant was issued a show cause notice dated 02.12.2009 demanding the wrongly availed CENVAT credit of service tax paid on GTA services under RCM for the period January 2005 to June 2007. The said demand of the wrongly availed CENVAT credit was confirmed by the adjudicating authority, which was upheld by the Commissioner (Appeals). This Tribunal, vide its Order dated 06.01.2020, remanded the proceedings to the adjudicating authority for fresh adjudication. The remand proceedings were also concluded by denying and confirming the demand of the said credit by both the lower authorities. The present appeal is against the Order of the Commissioner (Appeals) rejecting the Appellant s appeal against the demand of the wrongly availed credit. 2. Shri Prakash Shah along with Shri Mohit Raval, Advocates for the Appellant submit that the Appellant availed the GTA services for outward transportation of the final products on which the service tax is paid under RCM by the Appellant and since the said services are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. 4. We have carefully considered the submissions made by both sides and perused the records. We find that this second round of the litigation and dispute relates to admissibility of CENVAT credit on the GTA services availed for outward transportation of goods manufactured by the Appellant from their factory gate till customers premises. The Appellant is clearing the manufactured goods at ex-factory price and provides additional service of delivering the said goods to customers premise, for which the Appellant is availing GTA services and service tax on such services was paid under RCM. The definition of input service as it stood prior to and after 1.4.2008 is reproduced as under: Prior to 01.04.2008: (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal, and includes .. W.e.f. 01.04.2008: (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y w.e.f. 1-4-2008 vide Notification No. 10/2008-C.E. (N.T.), dated 1-3-2008 whereby the aforesaid expression from the place of removal is substituted by upto the place of removal . Thus from 1-4-2008, with the aforesaid amendment, the Cenvat credit is available only upto the place of removal whereas as per the amended Rule from the place of removal which has to be upto either the place of depot or the place of customer, as the case may be. This aspect has also been noted by the High Court in the impugned judgment in the following manner : However, the interpretation placed by us on the words clearance of final products from the place of removal and the subsequent amendment by Notification 10/2008-C.E. (N.T.), 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 and it cannot be included within the phrase activities relating to business . 9. In view of the aforesaid discussion we hold that the appeals are bereft of any merit and are accordingly dismissed. 8. In Commissioner v. Parth Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 9. In Commr., CGST C. Ex., Vadodara-II Vs. Gujarat Guardian Limited, 2018 (12) G.S.T.L. 300 (Guj.), the Hon ble Gujarat High Court held thus: 2. It is not in dispute that the issues arising in the present Tax Appeal are squarely covered by the judgment in case of Commissioner of C. Ex. Customs v. Parth Poly WoovenPvt. Ltd. reported in 2012 (25) S.T.R. 4 in which it was observed as under: 18. Bearing in mind the above judicial pronouncements, if we revert back to the definition of the term input service , as already noticed, it is coined in the phraseology of means and includes . Portion of the definition which goes with the expression means, is any service used by the manufacturer whether directly or indirectly in or in relation to the manufacture of final products and clearance of final products from the place of removal. This definition itself is wide in its expression and includes large number of services used by the manufacturer. Such service may h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the definition of Rule 2(1). We may only notice two things in this regard. Firstly, in our view, when we find that outward transport service is covered by the main body of the definition which provides for means part, as specifically including any service directly or indirectly in or in relation to manufacture of final product or clearance of final product from the place of removal, no interpretation of the later part of the definition would permit us to exclude such a service from the sweep of the definition. Secondly, we notice that the definition of the term input service came to be amended with effect from 1-4-2008 and instead of words clearance of final products from the place of removal , the words clearance of final products upto the place of removal came to be substituted. What would be the position if the case had arisen after 1-4-2008 is a situation we are not confronted with. We, therefore, refrain from making any observations in this regard. We, however, cannot help noticing the change in the statutory provisions which is at the heart of the entire controversy. Insofar as the cases on hand are concerned, the statutory provisions cover the service used by the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to CENVAT credit of service tax paid under RCM for transportation of goods from its factory to customer s premises. No case is made out by the revenue for denial of the CENVAT Credit on the ground that goods were not sold on FOR basis. 12. As regards the inclusion of the cost of transportation in the assessable value of the goods cleared by the Appellant, we find that this very issue was considered by the Larger Bench s in the case of ABB Limited 2009 (15) STR 23 (Tri.-LB), which was ultimately upheld by the Hon ble Supreme Court in case of Vasavdatta (Supra), and in which it is held as under: 18. For admissibility to credit for outward transportation there is no requirement that the cost of freight should enter into the transaction value of the manufactured goods. According to the department, since the cost of outward transportation does not form part of the transaction value of the manufactured goods as defined in Section 4 of the Central Excise Act, 1944, any service tax paid for the outward transportation of goods from place of removal cannot be allowed as credit to the manufacturer, although, the question of denial of credit does not arise if the cost of freight i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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