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Commissioner of Central Excise, Kolkata-IV V/S Bhushan Power & Steel Limited


Company & Directors' Information:- BHUSHAN POWER & STEEL LIMITED [Active] CIN = U27100DL1999PLC108350

Company & Directors' Information:- BHUSHAN LIMITED [Not available for efiling] CIN = U27104CH1999PLC022266

Company & Directors' Information:- CENTRAL INDIA POWER COMPANY LIMITED [Active] CIN = U40100MH1994PLC084055

Company & Directors' Information:- S. G. POWER AND STEEL PRIVATE LIMITED [Active] CIN = U14290DL2012PTC240718

Company & Directors' Information:- R. S. STEEL AND POWER PRIVATE LIMITED [Active] CIN = U70100CT2009PTC021362

Company & Directors' Information:- BHUSHAN AND CO PRIVATE LIMITED [Strike Off] CIN = U74899DL1981PTC011310

Company & Directors' Information:- BHUSHAN INDIA PRIVATE LIMITED [Strike Off] CIN = U74300DL1998PTC092538

Company & Directors' Information:- S BHUSHAN AND CO PRIVATE LIMITED [Strike Off] CIN = U74999DL1982PTC012943

    Appeal No. E/439/10 (Arising out of Order-in-Original No. 2/Commissioner/CE/Kol-IV/2010 dated 16.03.2010 passed by the Commissioner of Central Excise Kolkata-IV) and Order No. FO/A/76368/2018

    Decided On, 21 June 2018

    At, Customs Excise Service Tax Appellate Tribunal East Zonal Bench Bench, Kolkata

    By, THE HONORABLE JUSTICE: P.K. CHOUDHARY
    By, MEMBER AND THE HONORABLE JUSTICE: C.L. MAHAR
    By, MEMBER

    For Petitioner: S.S. Chattopadhyay, Suptd. (AR)



Judgment Text


1. When the case was called, none appeared on behalf of the respondent assessee. No adjournment request has been received. Since the matter is very old, pertaining to year 2010, the same is taken up for hearing.

2. The facts of the case in brief are that the respondent assessee have sent their finished excisable goods through the transport agency beyond the place of removal, i.e., upto the destination of their customers as well as port and took credit on the Service Tax on such transportation of finished goods. It is the case of the Revenue that the assessee merely arranges for transportation of the goods on behalf of the consignee and was authorized to release payment of transportation on behalf of the customers. A Show Cause Notice was issued for disallowing credit of Service Tax on GTA service under Rule 14 of CENVAT Credit Rules, 2004 along with interest and for imposing penalty. The Adjudicating Authority dropped the proceedings initiated vide Show Cause Notice (C. No. V(15)18-CE/Kol-IV/Adjn/Commr/2008/7184-D, dated 01.12.09). Hence, the Revenue is in appeal before the Tribunal.

3. The Ld. DR reiterates the grounds of the appeal and prays for allowing the appeal.

4. Heard the Ld. D.R. for the Revenue and perused the appeal records. The period of dispute in the present appeal is from April, 2006 to March, 2008. The issues to be decided in this appeal are as under:-

(i) CENVAT Credit availed on Service tax paid on outward freight for export of goods from factory to the port.

(ii) CENVAT Credit availed on Service Tax paid on outward transportation of goods by road upto the destination of their customer after sale from factory gate.

5. We find that the assessee was required to send their finished excisable goods through transport agency up to the destination of their customers as well as port of export, and have taken credit of Service Tax paid on such cost of transportation, by treating such transportation of finished goods as "input service" within the meaning of Rule 2(l) of the Cenvat Credit Rules, 2004. We also find from the impugned order, that the assessee had contended that as the transportation charges were paid by them to the transporters, since they were liable to pay Service Tax as service recipient, and accordingly were eligible to avail credit. We find that transaction of transportation of goods from factory gate to customer's premises involves transporters as "service provider" and the respondent assessee as service receiver, and transporters have no relation with the customers. We also find that the issue is no more res-integra in view of the decision of the Hon'ble Supreme Court of India in the case of the Commissioner of Central Excise, Belgaum v. Vasavadatta Cements Ltd. in 2018 (11) G.S.T.L. 3 (S.C.). The relevant paras of the judgment/decision are reproduced below:-

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 the definition to which the word means applies has to be construed restrictively as it is exhaustive. However, the portion of the definition to which the word includes applies has to be construed liberally as it is extensive. The exhaustive portion of the definition of 'input service' deals with service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products. It also includes clearance of final products from the place of removal. Therefore, services received or rendered by the manufacturer from the place of removal till it reaches its destination falls within the definition of input service. What are the services that normally a manufacturer would render to a customer from the place of removal. They may be packing, loading, unloading, transportation, delivery, etc. Though the word transportation is not specifically used in the said section in the context in which the phrase 'clearance of final products from the place of removal' is 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 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 chosen to use the word 'includes'. Therefore, the later portion of the definition has to be construed liberally. Specifically what are the services which fall within the definition of 'input service' has been clearly set out in that portion of the definition. Thereafter, the words 'activities relating to business' - an omni-bus phrase is used to expand the meaning of the word 'input service'. However, after using the omni-bus phrase, examples are given. It also includes transportation. The words used are (a) inward transportation of inputs or capital goods (b) outward transportation upto the place of removal. While dealing with inward transportation, they have specifically used the words 'inputs' or 'capital goods'. But, while dealing with outward transportation those two words are conspicuously missing. The reason being, after inward transportation of inputs or capital goods into the factory premises, if a final product emerges, that final product has to be transported from the factory premises till the godown before it is removed for being delivered to the customer. Therefore, 'input service' includes not only the inward transportation of inputs or capital 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., upto the place of removal.

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.

6. The Hon'ble Supreme Court in the case of Cus., C. Ex. & S.T., Guntur Vs. Andhra Sugars Ltd. reported in 2018 (10) G.S.T.L. 12 (S.C.) have applied the above ratio and decided in favour of the assessee. The relevant paragraphs of the above judgment/decision are reproduced below:-

"4. Before we proceed further, it would be necessary to take note of the definition of 'input service' which was prevailing at the relevant period i.e. prior to April 1, 2008. This definition contained in Section 2(l) of the Rules, 2004 reads as under:

"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 indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal,

and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation from the place of removal;

The phrase 'place of removal' is defined under Section 4 of the Central Excise Act, 1944. It states that-

'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 stored 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.;

5. We may also refer to Circular No. 97/8/2007-S.T, dated August 23, 2007 issued by the Central Board of Excise and Customs (CBEC) (hereinafter referred to as the 'Board') as per which the definition of 'input service' was clarified and the Circular also provided the conditions which are to be satisfied to cover the case within 'place of removal'. The three conditions contained in the circular are (i) regarding ownership of the goods till the delivery of the goods at the purchaser's door step; (ii) seller bearing the risk of or loss or damage to the goods during transit to the destination and; (iii) freight charges to be integral part of the price of the goods.

6. As mentioned above, in these cases, the assessees are claiming Cenvat credit in respect of service tax paid on outward transportation from their factory to the premises of customers. As per the Department, outward transportation engaged for removal of goods from factory to customer premises cannot be considered as an input service since premises of customer is not recognized as a place of removal under the Central Excise Act. To put it differently, the Department contends that the outward transportation provided beyond the place of removal is not eligible for input service for availing Cenvat credit.

7. Having regard to the definition of 'input service' that was prevailing at the relevant time i.e. prior to April 1, 2008, the aforesaid contention of the Department cannot be accepted. 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. The matter is squarely covered by the Board's Circular dated August 23, 2007, relevant portion whereof is as under:

"ISSUE : Up to what stage a manufacturer/consignor can take credit on the service tax paid on goods transport by road?

COMMENTS : This issue has been examined in great detail by the CESTAT in the case of M/s. Gujarat Ambuja Cements Ltd. v. CCE, Ludhiana [2007 (6) S.T.R. 249 Tri-D]. In this case, CESTAT has made the following observations:-

"the post sale transport of manufactured goods is not an input for the manufacturer/consignor. The two clauses in the definition of 'input services' take care to circumscribe input credit by stating that service used in relation to the clearance from the place of removal and service used for outward transportation upto the place of removal are to be treated as input service. The first clause does not mention transport service in particular. The second clause restricts transport service credit upto the place of removal. When these two clauses are read together, it becomes clear that transport service credit cannot go beyond transport upto the place of removal. The two clauses, the one dealing with general provision and other dealing with a specific item, are not to be read disjunctively so as to bring about conflict to defeat the laws' scheme. The purpose of interpretation is to find harmony and reconciliation among the various provisions".

Similarly, in the case of M/s. Ultratech Cements Ltd. v. CCE, Bhavnagar-2007-TIOL-429-CESTAT-AHM, it was held that after the final products are cleared from the place of removal, there will be no scope of subsequent use of service to be treated as input. The above observations and views explain the scope of the relevant provisions clearly, correctly and in accordance with the legal provisions. In conclusion, a manufacturer/consignor can take credit on the service tax paid on outward transport of goods up to the place of removal and not beyond that.

In this connection, the 8.2 phrase 'place of removal' needs determination taking into account the facts of an individual case and the applicable provisions. The phrase 'place of removal' has not been defined in Cenvat Credit Rules. In terms of sub-rule (t) of Rule 2 of the said rules, if any words or expressions are used in the Cenvat Credit Rules, 2004 and are not defined therein but are defined in the Central Excise Act, 1944 or the Finance Act, 1994, they shall have the same meaning for the Cenvat Credit Rules as assigned to them in those Acts. The phrase 'place of removal' is defined under Section 4 of the Central Excise Act, 1944. It states that,-

"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 stored 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."

It is, therefore, clear that for a manufacturer/consignor, the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the place of removal as per the definition. In case of a factory gate sale, sale from a non-duty paid warehouse, or from a duty paid depot (from where the excisable goods are sold, after their clearance from the factory), the determination of the 'place of removal' does not pose much problem. However, there may be situations where the manufacturer/consignor may claim that the sale has taken place at the destination point because in terms of the sale contract/agreement (i) the ownership of goods and the property in the goods remained with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of

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such credit that the sale and the transfer of property in goods (in terms of the definition as under section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the said place." 8. As can be seen from the reading of the aforesaid portion of the circular, the issue was examined after keeping in mind judgments of CESTAT in Gujarat Ambuja Cement Ltd. [2017 (6) S.T.R. 249 (Tribunal)] and M/s. Ultratech Cement Ltd : 2007 (6) S.T.R. 364 (Tribunal)]. Those judgments, obviously, dealt with unamended Rule 2(l) of Rules, 2004. The three conditions which were mentioned explaining the 'place of removal' are defined in Section 4 of the Act. It is not the case of the Department that the three conditions laid down in the said Circular are not satisfied. If we accept the contention of the Department, it would nullify the effect of the word 'from' the place of removal appearing in the aforesaid definition. Once it is accepted that place of removal is the factory premises of the assessee, outward transportation 'from the said place' would clearly amount to input service. That place can be warehouse of the manufacturer or it can be customer's place if from the place of removal the goods are directly dispatched to the place of the customer. One such outbound transportation from the place of removal gets covered by the definition of input service." 7. In view of the above discussions, and by respectfully following the ratio as laid down by the Hon'ble Supreme Court in the decisions cited above, we do not find any occasion to interfere with the impugned order and the same is accordingly sustained. The appeal filed by the revenue is dismissed.
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