2019 (2) TMI 1096 – CESTAT KOLKATA – TMI – CENVAT Credit – outward freight – place of removal is factory gate – period of dispute is from 01.01.2005 to 2007-2008, 2008-2009 and 2009-2010 (Upto November, 2009) – Held that:- The present issue is no more res-integra in view of the recent decision of the Hon’ble Supreme Court in the case of Commr. of Central Excise, Belgaum Vs. Vasavadatta Cements Ltd. [2018 (3) TMI 993 – SUPREME COURT], where it was held that rom 01.04.2008, with the aforesaid amendment, the CENVAT credit is available only upto the place of removal whereas as per the amended Rule from the place of removal which has to be upto either the place of depot or the place of customer, as the case may be – credit allowed – appeal allowed – decided in favor of appellant. – Ex. Appeal No.78529/18 – FO/75197/2018 – Dated:- 18-2-2019 – SHRI P.K. CHOUDHARY, JUDICIAL MEMBER Shri Shyamal Dey, Advocate for the Appellant (s) Shri A. Roy, Supdt. (A.R.) for the Revenue ORDER Per Shri P.K. C
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On appeal, the Commissioner (Appeals) dismissed the appeal. Hence the present appeal. 3. Heard both sides and perused the appeal records. 4. I find that the present issue is no more res-integra in view of the recent decision of the Hon ble Supreme Court in the case of Commr. of Central Excise, Belgaum Vs. Vasavadatta Cements Ltd. reported in 2018 (11) GSTL 3 (S.C.), wherein the Apex Court has held thus: 2. The entire issue hinges upon the interpretation that has to be given to input service which is defined in Rule 2(l) of the Cenvat Credit Rules, 2004. It may be stated at this stage itself that all these appeals relate to a period prior to 1-4-2008. The aforesaid Rule was amended w.e.f. 1-4-2008 as would be noticed hereafter. However, since we are concerned with the unamended Rule, we reproduce the same hereunder : (l) input service means any service, – (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indi
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context input service is defined as any service used by a provider of a taxable service or providing an output service or used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal . It is further held that second part of the definition starts from includes where some of the services are mentioned, which are included as input services . 4. We may make it clear that in the instant appeals, we are concerned with the first part of the definition. Insofar as second part is concerned, certain contentions, which have been raised by some of the assessees, have been rejected and that aspect is decided in favour of the Department. Since these appeals are filed by the Department questioning the interpretation that is given by the CESTAT as well as the High Court in respect of first part, we are not making any comments insofar as judgment of the CESTAT pertaining to second part is conc
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ther the place to their respective depots or transport upto the place of the customers, if from the place of removal the goods were directly delivered at customers place. It is made clear that only first set of transportation from the place of removal was claimed. To put it otherwise, in those cases where the tax paid on transportation on the goods from the place of removal upto the place of depot only that was claimed and if there was any such tax again paid from the place of depot to the place of customers, the Cenvat credit thereof was not claimed and there is no dispute about it. 6. The aforesaid approach of the Full Bench of the CESTAT, as affirmed by the High Court, appears to be perfectly correct and we do not find any error therein. For the sake of convenience, we would like to reproduce the following discussion contained in the judgment of the High Court. 30. The definition of input service contains both the word means and includes , but not means and includes . The portion of
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used, it includes the transportation charges. Because, after the final products has reached the place of removal, to clear the final products nothing more needs to be done, except transporting the said final products to the ultimate destination i.e. the customer s/buyer of the said product, apart from attending to certain ancillary services as mentioned above which ensures proper delivery of the finished product upto the customer. Therefore, all such services rendered by the manufacturer are included in the definition of input service . However, as the legislature has chosen to use the word means in this portion of the definition, it has to be construed strictly and in a restrictive manner. After defining the input service used by the manufacturer in a restrictive manner, in the later portion of the definition, the legislature has used the word includes . Therefore, the later portion of the definition has to be construed liberally. Specifically what are the services which fall within t
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goods but also includes outward transportation of the final product upto the place of removal. Therefore, in the later portion of the definition, an outer limit is prescribed for outward transportation, i.e., up to the place of removal. 7. As mentioned above, the expression used in the aforesaid Rule is from the place of removal . It has to be from the place of removal upto a certain point. Therefore, tax paid on the transportation of the final product from the place of removal upto the first point, whether it is depot or the customer, has to be allowed. 8. Our view gets support from the amendment which has been carried out by the rule making authority w.e.f. 1-4-2008 vide Notification No. 10/2008-C.E. (N.T.), dated 1-3-2008 whereby the aforesaid expression from the place of removal is substituted by upto the place of removal . Thus from 1-4-2008, with the aforesaid amendment, the Cenvat credit is available only upto the place of removal whereas as per the amended Rule from the place o
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