TMI Blog2018 (6) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... E (NT) dt. 1.4.2008. By this amendment, the phrase “from the place of removal” was substituted “up to the place of removal”. The issue of whether the assessees are eligible for service tax credit in respect of the GTA services beyond place of removal has been mired in litigation for quite some time. The appellants will be eligible for input service credit in respect of GTA services availed beyond their RDCs but only upto 31.3.2008. For all services availed on or after 1.4.2008, they then by consequence cannot avail input service credit on such GTA services - the input services which have been disputed except for GTA beyond the RDCs are very much eligible services for the purpose of Rule 2(l), whether before 1.4.2011 or after that date. Penalty - Held that:- Issues relating to eligibility of cenvat credit of many of these input services were a matter of litigation. Hence the matter has to be considered as one of interpretation - penalties set aside. Appeal disposed off. - Appeal Nos. E/419/10, E/193,279/12, E/41035, 41036/13 E/41366,41367/2015 E/Misc/41129/16, E/42520/16 E/42521/2016 - Final Order No. 41784-41792 / 2018 - Dated:- 5-6-2018 - Hon ble Shri Madhu Mohan Damo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 2008 to November, 2008 Amount Involved Rs.1,16,91,358/- Penalty ₹ 2000/- U/R 15 (3) Interest Levied Rule 14 of Cenvat Credit Rules, 2004 r/w Section 11A(1) Section 11 AB of Central excise Act, 1944. Show Cause Notice SCN No.68/2009 dated 16.09.2009 Reply/Objections filed 12.10.2009 Period April, 2008 Amount Involved Rs.24,88,915/- Penalty ₹ 2000/- U/R 15 (3) Interest Levied Rule 14 of Cenvat Credit Rules, 2004 r/w Section 11A(1) Section 11 AB of Central excise Act, 1944. Show Cause Notice SCN No.42/2009 dated 04.05.2009 Reply/Objection filed 30.06.2017 Period March, 2009 to September, 2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,23,857/- Penalty ₹ 4,62,390/- U/R 15 (3) Interest Levied Rule 14 of Cenvat Credit Rules, 2004 r/w Section 11 AB/11AA of Central excise Act, 1944. Show Cause Notice SCN No.46/2011 dated 22.11.2011 Reply/Objections filed 22.12.2011 Addl.Reply/Objection filed 27.12.2012 Order-in-Original Common O-in-O No.2 3/2013 (CE) dated 18.12.2013 5. Appeal No. E/41036/2013 Period July, 2011 to May, 2012 Amount Involved Rs.3,88,09,537/- Penalty ₹ 38,80,950/- U/R 15 (3) Interest Levied Rule 14 of Cenvat Credit Rules, 2004 r/w Section 11AA of Central excise Act, 1944. Show Cause Notice SCN No.28/2012 dated 28.08.2012 Repl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SOD No.25/2015 dated 07.08.2015 Reply/Objections filed 15.06.2016 Order-in-Original Common O-in-O No.46 47/2016 (CE) dated 23.06.2016 9 Appeal No. E/42521/2016 Period December, 2014 to August, 2015 Amount Involved Rs.99,86,448/- Penalty ₹ 8 Lakhs U/R 15 (1) Interest Levied Rule 14 of Cenvat Credit Rules, 2004 r/w Section 11AA of Central excise Act, 1944. Statement of Demand SOD No.1/2016-CE- dated 01.01.2016 Reply/Objections filed 16.06.2016 Order-in-Original Common O-in-O No.46 47/2016 (CE) dated 23.06.2016 2. Today when the matter came up for hearing, on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. in Final Order dated 20.4.2012 of CESTAT Mumbai. (c) Tribunal Final order No.20699/2017 dt. 17.5.2017 in the case of Bhoruka Park Private Ltd. Vs CST Bangalore. 3. On the other hand, on behalf of the respondent, Ld. A.R Shri A.Cletus made the following submissions : i) As laid down by the Hon ble Apex Court in Ultra Tech Cement (supra), there is no question of eligibility of credit in respect of GTA services availed beyond the place of removal. ii) Input services involving maintenance of air conditioners, glass supply services, cab operator service etc. are not activities relating to business . He submits that the term activities relating to business was not in or in relation to manufacture of final products. Ld. AR points out that the phrase relating to business which forms part of the definition of input services in Rule 2(l) does not find any place in the amended definition w.e.f. 1.4.2011. iii) The services received at the depot like cab operator service for bringing the office staff of RDCs / corporate office and other services received at the RDCs are not services in or in relation to manufacture of the goods and they will not be eligible. iv) ..... 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(Thane): i) Telecom :- Telephones installed and used at Thane. ii) Maintenance :- Repair and maintenance of office and office equipments at Thane. iii) Courier services : Courier services engaged at Thane. iv) Transport :- Freight charges incurred for the transport of goods from Thane to various retail shops. v) Car hire :- Cabs used at Thane for transport of officials of centre. vi) Providing temporary hand and Mathadi :- This service is nothing but the loading and unloading charges of materials incurred at Thane. d) At the Regional Distribution Centre from East (Kolkata): i) Telecom :- Telephones installed and used at Kolkata. ii) Maintenance:- Repair and maintenance of office and office equipments at Kolkata. iii) Courier services : Courier services engaged at Kolkata. iv) Transport :- Freight charges incurred for the transport of goods from Kolkata to various retail shops. v) C F :- Engaged for dispatch of materials from the Centre at Kolkata to various places. vi) Security services :-Security personnel engaged at distribution centre at Kolkata. vii) Manpower recruitment services :-Manpower engaged for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed to state that, in case of depot sales of goods, the credit of service tax paid on the transportation of goods up to such depot would be eligible, irrespective of the fact, whether the goods were chargeable to excise duty at specific rates or ad valorem rates on the basis of valuation under section 4 or 4A of the Central Excise Act. This being the case, there should not be any doubt that eligible services availed upto the depot /RDCs by the appellant in this case would be eligible for availment of input service credit. 5.2 On the dispute concerning GTA services availed beyond the RDCs, there are two different situations, one before 1.4.2008 and after that date, by virtue of amendment vide clause (ii) of Rule 2(l) by Notification No.10/2008-CE (NT) dt. 1.4.2008. By this amendment, the phrase from the place of removal was substituted up to the place of removal . The issue of whether the assessees are eligible for service tax credit in respect of the GTA services beyond place of removal has been mired in litigation for quite some time. However by the Hon ble Apex Court s two land mark judgments in Ultratech and Vasavadatta Cements (supra) the issue has now been set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transportation services beyond the place of removal has been specifically excluded by the amendment caused w.e.f. 1.4.2008. Be that as it may, higher appellate forums including Tribunal, High Courts and the Supreme Court in a number of decisions have consistently held that the services which have been disputed in these appeals are very much eligible for the purpose of availing Cenvat input service credit. The case laws relied upon by the Ld. counsel also reiterate this point. 6. Accordingly, we hold that all the input services which have been disputed except for GTA beyond the RDCs are very much eligible services for the purpose of Rule 2(l), whether before 1.4.2011 or after that date. 7. Coming to the matter of penalty, as already discussed earlier, issues relating to eligibility of cenvat credit of many of these input services were a matter of litigation. Hence the matter has to be considered as one of interpretation. This being the case, following settled law, we hold that there cannot be any penalty in respect of these cases. So ordered. 8. To sum up, appeals are partly allowed on the following terms, with consequential benefits, if any, as per law : i) Input servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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