TMI Blog2019 (9) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted for the word ' from' in clause 3 of Rule 2(l) which defines Input Services , cannot be applied to the facts of the present case. The Hon'ble Supreme Court held that the Cenvat on goods transport agency availed for transport of goods from the place of removal of Assessee to the buyer's premises was not admissible to the respondent and that by necessary implication would mean that Input Services for transport of goods upto the final place of removal of goods by way of sale to the buyers would be so included. The stark distinction of facts of the case before the Tribunal and the facts before the Hon'ble Supreme Court in Ultra Tech case should have been noticed by the final fact finding authority viz., the Tribunal before applying the judgment of the Apex Court to the facts of the case before it rather mechanically. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the definition of 'Input Services' defined in Rule 2(l) of the Cenvat Credit Rules after its amendment on 1.4.2008 in its clause (iii) included any service used by a manufacture, whether directly or indirectly, or in relation to manufacture of final products and 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 transport service ending at the terminal point of consignment and obviously that could not be included in view of the definition of ' Input Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the place of removal wherein the word ' upto ' has been substituted for the word ' from' in clause 3 of Rule 2(l) which defines Input Services , cannot be applied to the facts of the present case. 8. On the other hand, a careful reading of the definition of place of removal which is quoted below would reveal that in clause (iii) thereof, besides the words a depot, premises of a consignment agent , as contended by the learned counsel for the Revenue, there are further words in the said clause (iii) and which are or any other place or premises from where the excisable goods are to be sold after their clearance from the factory '. These words added to the other two clauses as emphasised by the learned counsel for the Revenue are not without a meaning and redundant. These words, on the other hand, enlarges the definition of place of removal in clause (iii) wherein besides a Depot of the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with unamended Rule 2(l) of Rules 2004. The three conditions which were mentioned 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 circular is made applicable even in respect of post amendment cases, it would be violative of Rule 2(l) of Rules, 2004 and such a situation cannot be countenanced. 13. The upshot of the aforesaid discussion would be to hold that Cenvat Credit on goods transport agency service availed for transport of goods from the place of removal to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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