TMI Blog2021 (3) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... the customers. This is a very important aspect to decide the admissibility of the credit. It is clear that though the freight was included in the total invoice value however the same was not included in the assessable value of the excisable goods sold by the appellant. Therefore, the ratio of the judgments in the case of M/S ULTRATECH CEMENT LTD. VERSUS C.C.E. KUTCH (GANDHIDHAM) [ 2019 (2) TMI 1487 - CESTAT AHMEDABAD] and M/S SANGHI INDUSTRIES LTD. VERSUS C.C.E. KUTCH (GANDHIDHAM) [ 2019 (2) TMI 1488 - CESTAT AHMEDABAD] is not directly applicable in the facts of the present case, where it was held that the Cenvat credit was allowed on one of the important facts that the freight element was included in the assessable value and excise du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the present case is that whether the appellant is entitled for Cenvat credit of Service Tax paid on Outward Transportation Service for clearance of Excisable Goods by the appellant. 2. The Brief facts of the case is that the appellant raise the sale invoice in respect of sale of goods wherein after calculating the excise duty on the assessable value an amount of ₹ 45000/- was added and recovered from the buyer of the goods. On this freight the service tax was paid and the same was claimed as Cenvat Credit which is not in dispute in the present case. 3. Shri Dhaval K. Shah, Learned Counsel appearing on behalf of the appellant submits that the freight is included in the invoice value of the goods and the sale is on FOR basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e declared the availment of the Cenvat Credit in their monthly return from time to time. Therefore there is no suppression or willful misstatement on their part. 4. On the other hand Shri R. K Bhashkar, Learned Superintendent (Authorized Representative) appearing on behalf of the revenue reiterates the finding of the impugned order. He placed reliance on the following Judgments. COMMISIONER OF CENTRAL EXCISE AND S.T. Vs. ULTRA TECH CEMENT LTD.- 2018 (9) G.S.T.L 337 (S.C.) NCL INDUSTRIES LTD Vs. COMMISSIONER OF CENTRAL TAX GUNTUR- 2020-TIOL -1149- CESTAT - HYD 5. I have carefully considered the submission of both sides and perused the records. I find that the issue of Cenvat Credit on outward transportation has been consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n settled time and again by the Hon ble Supreme Court as per the judgment cited by the Ld. Counsel and on various other judgments that beneficial Circular cannot be withdrawn retrospectively. Consequently, the benefit of the said Circulars shall be available to the appellant during the material period of this case. As regard limitation, we find that the issue was not free from doubt and right from introduction of Cenvat Scheme under Cenvat Credit Rules, the outward GTA was the matter under litigation and for that reason the Government has to come out with clarification thereafter the matter was subject to various litigation before Tribunal, Hon ble High Courts and Hon ble Supreme Court, therefore no malafide intention can be attributed to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the assessable value of the excisable goods sold by the appellant. Therefore, the ratio of the judgments in the case of M/s. Ultratech Cements Limited and M/s. Sanghi Industries Limited is not directly applicable in the facts of the present case. These two judgments of the tribunal were upheld by the Hon ble Gujarat High Court. 5.4 As per the above settled position the appellant on merit is not entitled for the Cenvat Credit. As regard the limitation, I find that there is no dispute that the appellant is availing the Cenvat credit and declaring in their monthly returns. The issue involved is also of interpretation of Cenvat Credit Rules and on this issue there are number of cases were made out by the department. In these circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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