2018 (5) TMI 1514 – CESTAT CHENNAI – TMI – CENVAT credit – input services – denial on account of nexus – Held that: – there is no clarity as to whether what was sent through courier were only samplers or the manufactured goods under the guise of samples; and in any case, if the dispatch was of the goods then, it will have a different consequence – there is no clarity as to whether what was sent through courier were only samplers or the manufactured goods under the guise of samples; and in any case, if the dispatch was of the goods then, it will have a different consequence – it is proper to remit this issue back to the file of the adjudicating authority with a further direction to the appellant to clarify its stand ie., what was sent was courier were samples or manufactured goods and then it is for the adjudicating authority to give a finding after considering the same in accordance with law – appeal allowed by way of remand. – E/40019/2018 – Final Order No. 41554/2018 – Dated:- 24-5-
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– being the service tax credit taken on the above mentioned services which are ineligible input services as detailed above should not be recovered under Rule 14 of CCR,2004, read with Section 11A (1) of CEA, 1944; ii) interest at the prescribed rate should not be charged from them under Rule 14 of CCR, 2004, read with Section 11AA of the CEA, 1944; and iii) penalty should not be imposed under Rule 15 (1) of CCR, 2004. 3. The appellant-assessee filed a detailed reply vide its letter dated nil and also explained that they have correctly availed the input credit. The adjudicating authority however, vide Order-in-Original dated 26.08.2016 passed an order allowing a partial Cenvat credit. Aggrieved by the said order, the assessee preferred an appeal before the Commissioner (Appeals-I), Chennai, and the Commissioner (Appeals) also gave a partial relief vide his OIA dated 28.11.2016. Aggrieved by the said order of the Commissioner (Appeals), the assessee is now before this Tribunal and the as
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the impugned order had not discharged its onus as to ineligibility of credit regarding the service of which Cenvat credit was denied. Thus, according to the ld. Counsel for the appellant the courier service on outward transportation of goods utilized by the manufacturer for transportation of goods are certainly covered under Rule 2 (l) of CCR, 2004 and that when the goods were being dispatched through courier, the ownership of the goods are not transferred till they are delivered to the customers through courier agency and therefore, service tax paid up that point was required to be considered for the purpose of Cenvat credit. In this regard, the Ld. Consultant has relied on the decision of the Hon ble High Court of Karnataka in the case of CCE & ST, Belgaum Vs. Vasavadatta Cements Ltd. – 2011 (24) STR 542 (Kar.). The Ld. Consultant finally submits inter-alia that the Cenvat credit is available up to the place of removal which has been defined under Section 4 (3) (c) of CEA, 1944;
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ite clear from the appellant s grounds of appeal No.8, 10, 14 & 18. Thus there is no clarity as to whether what was sent through courier were only samplers or the manufactured goods under the guise of samples; and in any case, if the dispatch was of the goods then, it will have a different consequence. Once this factual aspect becomes clear, then the law as laid down by the Courts can be applied. I therefore deem it proper to remit this issue back to the file of the adjudicating authority with a further direction to the appellant to clarify its stand ie., what was sent was courier were samples or manufactured goods and then it is for the adjudicating authority to give a finding after considering the same in accordance with law. 6.2 The Ld. Consultant appearing for the appellant further argued that with regard to ISD credit, the authorities should not question the liability of credit. The Ld. Commissioner appearing for the Revenue argued that the Commissioner (Appeals) has only dire
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