2018 (7) TMI 686 – CESTAT CHENNAI – TMI – CENVAT Credit – input services – outward transportation of goods for the goods cleared from their factory gate to their own units at Jamshedpur and Uttarakhand – Stock transfer – place of removal – periods September 2009 to February, 2010 and October 2014 to April 2015, May 2015 to February 2016.
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Held that:- The Hon’ble Apex Court in the case of Ultratech Ltd. [2018 (2) TMI 117 – SUPREME COURT OF INDIA] had laid the law that after 1.4.2008 CENVAT credit on GTA service is not eligible from the factory to buyer’s premises and eligible only upto the place of removal which is the factory gate – credit cannot be allowed.
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Appeal dismissed – decided against appellant. – Appeal Nos. E/40311 to 40313/2018 – Final Order Nos. 41949-41951 / 2018 – Dated:- 9-7-2018 – Hon ble Ms. Sulekha Beevi C.S., Member ( Judicial ) Shri R. Anish Kumar, Advocate for the Appellant Shri S. Govindarajan, AC (AR) for the Respondent ORDER The issue in all these ap
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he appellant, ld. counsel Shri Ashwin Kumar submitted that the appellant in the present cases are contesting the issue of disallowance of credit on GTA services for outward transportation of goods which were stock transferred to their own factory which is a manufacturing unit located at Jamshedpur and Uttarakhand. He referred to Section 4(3)(c) of the Central Excise Act, 1944 and submitted that the place of removal is defined as a factory or any other place or premises of production or manufacture of the excisable goods. In terms of Rule 2(qa) of CENVAT Credit Rules, 2004 also the place of removal means a factory or any other place or premises of production or manufacture of the excisable goods. The place of removal is required to be determined with reference to point of sale . In the case of stock transfer, the entire goods are transferred to the other manufacturing unit of the appellant and therefore at the factory gate no sale takes place. Thus, in the case when the goods are stock
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premises after 1.4.2008 is not eligible. 5. Heard both sides. 6. For better appreciation, the relevant provisions of law are reproduced as under:- Place of removal means – (i) a factory or any other place or premises of production or manufacture of the excisable goods; (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without [payment of duty;] [(iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory;] from where such goods are removed . Input services after 1.4.2008 Input service means,- (i) services provided or agreed to be provided by a person located in non-taxable territory to a person located in non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India where service tax is paid by the manufacturer or the provider of output service
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o the place of removal. [but excludes], – [(A) service portion in the execution of a works contract and construction services including service listed under clause (b) of section 66E of the Finance Act (hereinafter referred as specified services) in so far as they are used for – (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, except for the provision of one or more of the specified services; or] [(B) [services provided by way of renting of a motor vehicle], in so far as they relate to a motor vehicle which is not a capital goods 7. With effect from 1.4.2008, in the definition of input services the words upto the place of removal has been substituted instead of from the place of removal . The ld. counsel has strenuously argued that since there is no sale of goods from the factory gate when the goods are stock transferred to their own unit for further ma
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wn unit on payment of duty. The relevant portion of the order is reproduced as under:- 6. I find that both lower authorities have confirmed demand of Cenvat credit on GTA only on the ground that clearances to the job worker and their own unit made on payment of duty, for this reason it was contended that factory of the appellant is place of removal and credit cannot be allowed beyond the place of removal. I find that though the goods were cleared on payment of duty but it is admittedly not clearance for sale of the goods. In terms of Section 4(3)(c) of Central Excise Act, 1944, definition of place of removal is as under : Place of removal means :- (i) a factory or any other place or premises of production or manufacture of excisable goods; (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty; (iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are
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ualified as input service. As per this clear position in law, I am of the view GTA in the present case being used up to the place of removal covered under the definition of input service and hence admissible for Cenvat credit. I therefore, set aside the impugned order and allow the appeal with consequential relief, if any, in accordance with law. 8. In Lafarge India Pvt. Ltd. (supra), the Tribunal referring to Roofit Industries Ltd. (supra), has observed that credit of service tax paid on transportation of clinker to their sister unit is admissible as there is no case of sale and transfer of property in goods at the factory gate. The relevant portion is as follows:- 6. After careful consideration of the facts, the submissions of both the sides and the case laws cited, it appears that the facts do not involve any sale of the goods in question. The goods viz. clinker is to be transported from party s premises to their sister unit premises and the respondent viz. Lafarge India Pvt. Ltd. i
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le Apex Court in the case of Ultratech Ltd. (supra) had laid the law that after 1.4.2008 CENVAT credit on GTA service is not eligible from the factory to buyer s premises and eligible only upto the place of removal which is the factory gate. The relevant portion of the judgment is reproduced as under:- 7. It may be relevant to point out here that the original definition of input service contained in Rule 2(l) of the Rules, 2004 used the expression from the place of removal . As per the said definition, service used by the manufacturer of clearance of final products from the place of removal to the warehouse or customer s place etc., was exigible for Cenvat Credit. This stands finally decided in Civil Appeal No. 11710 of 2016 (Commissioner of Central Excise Belgaum v. M/s. Vasavadatta Cements Ltd.) vide judgment dated January 17, 2018. However, vide amendment carried out in the aforesaid Rules in the year 2008, which became effective from March 1, 2008, the word from is replaced by the
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