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2016 (11) TMI 479 - CESTAT BANGALORE

2016 (11) TMI 479 - CESTAT BANGALORE - TMI - Denial of CENVAT credit - service tax paid on transportation of goods from factory to warehouse - input services - whether the service tax paid on GTA services on the outward freight from the factory to the warehouse are eligible as input service? - place of removal of goods - Held that: - place of removal in the case of the assessee is not the factory gate rather it is the warehouse or the depot from where the goods are sold to ultimate consumers or .....

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he impugned orders by allowing the appeals of the assessee with consequential relief, if any. As far as appeals filed by the Revenue are concerned, I do not find any infirmity in the impugned orders passed by the Commissioner (A) therefore I uphold the impugned orders and dismiss the Revenue s appeals. - E/1655/2010, E/2594/2011, E/1012-1013/2012 - Final Order No. 21109-21112/2016 - Dated:- 9-11-2016 - Hon'ble Shri S. S. Garg, judicial member Shri K. S. Ravi Shankar & Shri N. Anand, Advo .....

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.15,57,819/- ₹ 2,000/- E/1012/2012 Oct. 2009 to March 2010 Rs.13,81,639/- Rs.13,81,639/- E/1013/2012 April to Sept. 2010 Rs.13,73,664/- Rs.13,73,664/- The dispute pertains to denial of CENVAT credit by the lower authorities in the first two appeals filed by the assessee. In the set of second two appeals, the Revenue is in appeal on the same issue for the subsequent period when the lower authorities accepted the assessee s eligibility to claim CENVAT credit and dropped the proceedings of di .....

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the procedure envisaged for ISD under the CENVAT Credit Rules (CCR), 2004. The assessee was issued show-cause notice dated 17/18.6.2005 by the Additional Commissioner of Central Excise, Bangalore and called upon the appellant to show-cause as to why input service CENVAT credit of ₹ 17,57,819/- should not be disallowed and recovered under Rule 14 of CCR read with Section 11A of the Act along with interest under Rule 14 of the CCR and penalty under Rule 15(3) of CCR should not be imposed. Th .....

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rejected the assessee s appeal. Aggrieved by the order of the Commissioner (A), the assessee filed the present appeals and the Revenue aggrieved by the other orders where the assessee was given relief by the lower appellate authorities have filed the Revenue appeals. 4. Heard the learned counsel for the parties and perused the records. 5. The learned counsel for the appellant in the assessee s appeals submitted that the impugned order is not sustainable in law as the same has been passed withou .....

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er documents have not been considered by the department. The authorities below have not appreciated the text and context of the Section 4 of the Act and therefore the impugned order is bad in law. He further submitted that the impugned order has the effect of denying with the left hand what was bestowed by the right hand in the form of CENVAT credit, which is opposed to the Hon ble Supreme Court s judgment in the case of UOI vs. Suksha International and Nutan Gems: 1989 (39) E.L.T. 503 (S.C.). H .....

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& H) (c) Ultratech Cements Ltd. vs. UOI: 2014 (307) E.L.T. 3 (Chhat.) (d) Lafarge India Ltd. vs. CCE: 2014 (307) E.L.T. 7 (Chhat.) (e) DSCL Sugar vs. CCE: 2014 (34) E.L.T. 58 (Tri.-Del.) (f) CCE vs. Haryana Sheet Glass Ltd.: 2015 (39) S.T.R. 392 ( P & H) (g) CCE vs. Rine Machine Tools: 2016 (42) S.T.R. 809 (P & H) (h) Pooja Forge Lab vs. CCE: 2013 (30) S.T.R 371 (Tri.-Del.) (i) Palco metals Ltd. vs. CCE: 2012 (280) E.L.T. 299 (Tri.-Ahmd.) He further submitted that the lower authoriti .....

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the Revenue. This is evident from various invoices issued by the assessee from their factory under Rule 11 of CER, 2002 for transfers of stocks and there are separate invoices raised for sale to buyers which is for sale from warehouse/depot/godown i.e., place of removal . He also submitted that the stand of the Revenue in the impugned order that the place of removal is the factory does not hold water at all inasmuch as stocks were transferred at their own cost and risk till the place of removal .....

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o.137/3/2006-CX.4 dated 2.2.2006 (not rescinded till date) (b) Circular No.97/8/2007 dated 23.8.2007 (not rescinded till date (c) Circular No.988/12/2014-CX dated 20.10.2014 It is pertinent to mention that the Circular No.988/12/2014-CX was noticed by the Hon ble Karnataka High Court in the case of Madras Cement vs. CCE: 2014( 40) S.T.R. 645 overruling the Tribunal s decision and holding that even after 1.4.2008 amendment there would be no difference on credit availability of outward transportat .....

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ubsequent amendment of CCR, 2004 in the form of new Rule 2(qa) defining place of removal as the same in Section 4(3)(c) by Notification No.21/2014 dated 11.7.2014 justifies the stand of the appellant, when read with Circular of 2014 coupled with decision of the Karnataka High Court in Madras Cement (supra). 6. On the other hand, the learned AR has reiterated the findings in the impugned order and submitted that the place of removal is the factory gate and therefore the CENVAT credit on GTA is no .....

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as input service. Further, the issue revolves around the phrase place of removal in the impugned orders. I find force in the contention of the learned counsel of the assessee that place of removal in the case of the assessee is not the factory gate rather it is the warehouse or the depot from where the goods are sold to ultimate consumers or buyers. Further, in view of the various judgments cited supra, the ratio of which is that the place of removal extends to customer premises. Moreover the Ci .....

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