TMI Blog2015 (9) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... HIGH COURT] distinguished. Decisions in the case of CCE vs. Vesuvious India Ltd [2013 (12) TMI 1025 - CALCUTTA HIGH COURT] and India Japan Lighting Private Ltd. [2009 (7) TMI 1217 - MADRAS HIGH COURT] and Lafarge India Ltd. vs. CCE [2014 (10) TMI 297 - CHHATTISGARH HIGH COURT] and CCE vs. Lumino Industries Ltd. [2014 (1) TMI 1424 - CALCUTTA HIGH COURT] followed. - Credit disallowed - Decided against assessee. - Appeal No. E/2187/10-MUM - - - Dated:- 5-5-2015 - Ramesh Nair, Member (J), J. For the Petitioner : Shri V K Godbole, Consultant For the Respondent : Shri Ashitosh Nathi, Asstt. Commissioner (AR) ORDER Per Ramesh Nair This appeal is directed against Order-in-Appeal No. PII/PAP/119/2008 dated 25/6/2008 passed by the Commissioner (Appeals) Central Excise, Pune-II, wherein the Ld. Commissioner (Appeals) upheld the order-in-original rejecting the appeal of the appellant except the order portion pertaining to penalty aspect. The issue involved in this case that whether during the period from 7/2006 to 3/2007 Cenvat Credit is admissible on service of outward transportation. The fact of the case is that the appellant availed Cenvat Credit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the present appeal is whether the appellant is entitled to avail Cenvat Credit paid on freight on the removal of final product from their factory/depot to the dealer. The department has filed that the appellant is not entitled to avail the credit of Service Tax paid towards freight for removal of final product form, factory to dealers premises in as much as the same is no t considered as, input service's which are used in or in relation to the manufacture of final product. Whereas the appellant claims that as per Rule 2(1)(ii) of Cenvat Rules they are entitled to avail the credit of Service Tax paid towards freight on clearance of final product from their factory. They argued that according to the inclusive definition even the post manufacturing activity relates to business, they are entitled to avail the credit of Service Tax paid towards freight on clearance of final product from their factory. They argued that according to the inclusive definition even the post manufacturing activity relates to business, they are entitled to avail credit and utilize the same towards payment of Service Tax/duty. Again they submitted that the issue i.e. whether Service Tax paid, towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the clearance of final products from the place of removal. In the case of Gujarat Ambuja Cements (supra) the Division bench accepted the revenue's argument that transportation did not come within the scope of clearance, which is not different from the view taken by us. In the result, it is held that the outward transportation of final products after their clearance from factory, in this case ******* is not a service used, directly or indirectly, in the clearance of the goods form the factory. 4.2.1 Vide para 8.3 it was held input service as defined under Rule 2(l)(ii) is any service used, directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal. It was further held in the same para where place of removal of final product is, say a depot, transportation of goods from the factory to the depot is an input service as it is used in relation to the clearance of the goods from the depot. The Hon'ble Tribunal, while considering whether the particular input service has been used directly or indirectly in relation to the clearance of final product, has held vide para 8.4 that when it has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e through various judgments relied upon by the Ld. A.R. wherein it was held as under: CCE vs. Vesuvious India Ltd 11. We are, with respect to the Hon'ble Division Bench, unable to see how can it be said from the restrictive part of the definition that the services received or rendered by the manufacturer from the place of removal till it reaches its destination falls within the definition of input service . 12. Yet another reasoning given by the Hon'ble Division Bench is as follows: Therefore, it is clear that till such amendment made effective from 1-4-2008 notwithstanding the clarification issued by the Central Government by way of their circular, transportation charges incurred by the manufacturer for 'clearance of final products from the place of removal' was included in the definition of input service. 13. By the amendment made with effect from 1st April, 2008 substituting the word from by the word upto all that has been done is to clarify the issue. Neither the services rendered to the customer for the purpose of delivering the goods at the destination was covered by the definition of input service prior to 1st April, 2008, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said proposition. b) There are more reasons. In paragraph 30, the Hon'ble Division Bench of the Karnataka High Court opined that The definition of input service contains both the word means' and includes, but not 'means and includes'. The portion of the definition to which the word means applies has to be construed restrictively as it is exhaustive. However, the portion of the definition to which the word includes applies has to be construed liberally as it is extensive. The exhaustive portion of the definition of 'input service' deals with service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products, it also includes clearance of final products from the place of removal. Therefore, services received or rendered by the manufacturer from the place of removal till it reaches its destination falls within the definition of input service. We are, with respect to the Hon'ble Division Bench, unable to see how can it be said from the restrictive part of the definition that the services received or rendered by the manufacturer from the place of removal till it reaches its destination fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
