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2019 (9) TMI 328

..... le Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] in the facts of present case. HELD THAT:- A closer and finer reading of the Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] would clearly reveal that the Hon'ble Supreme Court was concerned only with the controversy of Cenvat Credit on goods transported from the place of removal to the buyers' premises and not the transport of goods from one Unit of the Assessee to another Unit of the same Assessee. In the context of the factual background, the judgment of the Hon'ble Supreme Court, in view of the amended definition .....

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..... or of appellant. - C.M.A.Nos.1933 to 1935 of 2018 - 20-8-2019 - Dr. Justice Vineet Kothari And Mr. Justice C.V. Karthikeyan For the Appellant : Mr.M.V.Swaroop For the Respondent : Mrs.Aparna Nandakumar Senior Standing Counsel COMMON JUDGMENT Dr.VINEET KOTHARI, J. The Assessee is in Appeal before this court aggrieved by the order dated 9.7.2018 passed by the learned CESTAT by which the Appeals filed by the Assessee came to be dismissed and the learned Tribunal held that the Appellant/Assessee was not entitled to Input Tax Credit of Service Tax paid on transportation of excisable goods from its Chennai Unit I to Jamshedpur Unit 2 of the Assessee itself. 2. The learned Tribunal relied upon the decision of the Hon'ble Supreme Court in the c .....

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..... clearance of final goods upto the place of removal, therefore, the Service Tax paid by the Assessee on the transportation of goods viz., Radiators from its Chennai Unit 1 to Unit 2 at Jamshedpur will be covered by the said clause (iii) of the definition and the Assessee was entitled to claim Cenvat credit of such Service Tax paid on the transportation charges incurred for transportation of goods from Unit 1 to Unit 2. 4. He submitted that the Judgment of the Hon'ble Supreme Court in the case of Ultra Tech Cement is distinguishable on facts as the controversy involved in the case before the Supreme Court was one pertaining to the transport of goods from the place of removal of Assessee seller to buyer's premises, which is an outward .....

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..... transporting the goods in semi-finished condition viz., the Radiators from its Chennai Units to Jamshedpur Unit cannot be included within the definition of place of removal and therefore, the learned Tribunal was justified in denying the Cenvat Credit for the Service Tax paid on transport charges for transporting the goods from Chennai to Jamshedpur. 6. We have heard the learned counsels at length and perused the order of the learned Tribunal as well as the Judgment of the Hon'ble Supreme Court cited at the Bar. 7. We are of the clear opinion that the Judgment of the Hon'ble Supreme Court in the case of Ultra Tech Cement Limited supports the case of the Assessee rather than that of the Revenue. A closer and finer reading of the said .....

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..... t Jamshedpur in the case of the Assessee in the present case would be covered, where the excisable goods are to be sold after their clearance from the factory. Though the semi-finished goods (Radiators) were sent from Chennai Unit 1 of the Assessee, the further manufacturing process at Unit 2 at Jamshedpur does not negate it or oust it from the definition of "place of removal" in any manner. On the contrary, the goods sold as excisable goods viz., Intercooler with Radiators in the present case, clearly fall within clause (iii) of Rule 2(qa). We are not persuaded to take an unnecessarily narrow or restricted view of the said definition, as canvassed by the learned counsel for the Revenue. 9. The Judgment of the Hon'ble Supreme .....

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..... d explaining the 'place of removal' as defined under Section 4 of the Act, there is no quarrel upto this stage. However, the important aspect of the matter is that Cenvat Credit is permissible in respect of 'input service' and the Circular relates to the unamended regime. Therefore, it cannot be applied after amendment in the definition of 'input service' which brought about a total change. Now, the definition of 'place of removal' and the conditions which are to be satisfied have to be in the context of 'upto' the place of removal. It is this amendment which has made the entire difference. That aspect is not dealt with in the said Board's circular, nor it could be. 12. Secondly, if such a circula .....

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..... echanically. It is the duty of the final fact finding body to analyse the facts of the case on hand appropriately and only after comparing the facts of the case before the higher Constitutional Courts, it should proceed to apply the ratios of the Judgments from the Constitutional Courts to the case before it. The misapplication of the Judgments without comparing the facts, can result in serious miscarriage of justice and can expose the non-application of mind by the responsible appellate forums like the CESTAT in the present case. 12. Having analysed the facts of the case on hand before us and the facts of the case before the Hon'ble Supreme Court, we reiterate that the ratio of the Judgment of the Supreme Court in Ultra Tech case suppo .....

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