TMI Blog2016 (5) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... n - Rule-14 of CCR, 2004 read with proviso to section 11A(1) of the Central Excise Act, 1944 - Held that:- the matter is of interpretation of provisions of CCR, when a part of the service tax credit has been held to be admissible to the Respondent, therefore, extended period of 5 years cannot be invoked and demand has to be restricted to the normal period of limitation with respect to CENVAT Credit availed by the Respondent for transportation services availed from the factory premises of the job worker to the depot of the Respondents. Also the penalty imposed upon the Respondent under Rule 15(2) of CCR, 2004 read with Section 11AC ibid is not substantiable and is set aside. - Decided partly in favour of revenue - Appeal No. E/71153/2013 - Order No.FO/A/75300/2016 - Dated:- 29-4-2016 - SHRI H.K.THAKUR, MEMBER (TECHNICAL) For the Petitioner : Sri S.S.Chatterjee, Supt.(AR) For the Respondent : Sri Arnab Chakraborty and Sri K.N.Ramanathan, Advocate ORDER Per Sri H.K.Thakur 1. This Appeal has been filed by the Revenue against Order-in-Appeal No.138/JSR/2013 dated 13.06.2013 passed by the Commissioner (Appeals), Ranchi as First Appellate Authority. Cross obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate) made following arguments in support of the cross objections filed by the Respondent. (i) That Respondent has used GTA services in relation to his business upto the place of removal which is covered within the definition of Input service defined in Rule 2 (l) of Cenvat Credit Rules, 2004. That the Depots from where the goods are sold to the ultimate customers is the place of removal and all services availed upto the depot is admissible as Cenvat credit to the appellant. Learned Advocate relied upon the case law of CCEVs. Ultratech Cement Ltd. [2010 (260) ELT 369-para 28]. (ii) That Respondent remain manufacturer and owner of the finished goods as principal manufacturer as per Rule 10A of the Central Excise (Determination of price of Excisable goods) Rules, 2000. (iii) That as per case law Ultratech Cement Ltd. Vs. CCE, Raipur [2014 (35) STR 641(Chhatrisgar)] and Lafarge India Ltd. Vs. CCE, Raipur [2014 (301) ELT 7 (Chhatrisgar) place of removal could be depot from where finished goods are sold. That in the case of M.P. Biscuits Private Ltd. [2012 (282) ELT 563 (Tri.-Del.)] credit from the job workers premises to the depot of the principal manufacturer w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit reads as follows: (n) job work means processing ort working upon of raw material or semi-finished goods supplied to the job worker, so as to complete a part or whole of the process resulting in the manufacture or finishing of an article or any operation which is essential for aforesaid process and the expression job worker shall be construed accordingly . 4.2 Further the definition of manufacture as given in Section 2 (f) of the Central Excise Act, 1944 reads as follows: (f) Manufacture includes any process,- (f) Manufacture includes any process,- (i) Incidental or ancillary to the completion of a manufactured product; (ii) Which is specified relation to any goods in the Section or Chapter notes of 15[the First Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to 16[manufacture or] 17[(iii) which, in relation to the goods specified in the third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emoval contained in Rule 2 (qa) of the CCR reads as follows:- [(qa) 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 the excisable goods have been permitted to be deposited without payment of duty; (iii) a depot, premises of consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory from where such goods are removed.] However, this definition is made effective from 11/7/2014 and was inserted as per Notification No. 21/2014 -CE(N.T.) dated-11/7/2014. The period of demand in the present proceeding is from October, 2006 to March, 2012. The definition of place of removal as given in Rule 2 (qa) of CCR is also existing in Section 4(3) ( c) of the Central Excise Act, 1944. 4.5 As per the above definition, place of removal could be a factory of manufacturer or a premises where excisable goods are stored without payment of duty or a place/premises where goods are sold after clearance from the factory. The place of removal in a given situation can be one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, Cenvat credit of service tax paid by the Respondent upto the place of removal will be admissible. At the same time, service tax paid by the Respondent for transportation of goods from the job workers premises (place of removal) to the Depots of the Respondent has to be treated as services availed beyond the place of removal as there cannot be two manufacturers and two place of removals for the same goods. 4.7 On the aspect of time taken by the Respondent it is observed that the matter is of interpretation of the provisions of CCR, when a part of the service tax credit has been held to be admissible to the Respondent, therefore, extended period of 5 years cannot be invoked under Rule-14 of CCR, 2004 read with proviso to section 11A(1) of the Central Excise Act, 1944 and demand has to be restricted to the normal period of limitation with respect to CENVAT Credit availed by the Respondent for transportation services availed from the factory premises of the job worker to the depot of the Respondents. For this limited purpose of quantification the appeal of the Revenue is allowed by way of remand to the Adjudicating authority . This bench is also of the considered opin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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