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Commissioner of Central Excise v/s Lao More Biscuits Pvt Ltd.

    E/1061, 1062, of 2007, 648 of 2008, 59, 60 of 2010-SMC & OIA Nos. 61, 62 to 2007, 38 of 2008, 351, 353-2009, -AHD-II-CE-RAJU-COMR-A- & Order No. A/10793-10797 of 2016

    Decided On, 31 August 2016

    At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad

    By, THE HONOURABLE DR. D.M. MISRA
    By, MEMBER (JUDICIAL)

    For the Assessee: Aparna Hirangadi, Advocate. For the Revenue: G.P. Thomas, A.R.



Judgment Text

D.M. Misra:

1. From the above mentioned appeals, 3 appeals viz. E/1061-1062/2007-SM and E/648/2008-SM have been filed by the Assessee-Appellant and remaining two appeals viz. E/59-60/2010-SM have been filed by the Revenue against the respective Orders-in-Appeal passed by the Commissioner of C.Ex. & C.(Appeals), Ahmedabad. Since the issues involved in all these appeals are common, these are taken up together for disposal.2. Briefly stated the facts of the case relating to the Assessees Appeals are that the Appellants were engaged in the manufacture of Biscuits falling Chapter No.19.05 of Central Excise Tariff Act, 1985 on job work basis out of the raw material and packing material supplied by M/s Parle Products Pvt. Ltd (herein after called as M/s PPPL) as per the Agreement between the Appellant- assessee and M/s PPPL. The Assessee had availed CENVAT Credit on inputs, capital goods and Input services i.e inward and outward freight (GTA Service) on transport of goods by road and utilized the said credit towards payment of Central Excise duty on the manufactured biscuits on behalf of M/s Parle Products Pvt. Ltd. Show cause cum demand notices were issued from time to time for recovery of CENVAT Credit availed on the said input service. The demands were confirmed and penalty imposed by the Adjudicating Authority. On appeals carried out from the said orders before the learned Commissioner (Appeals), the same were rejected by the learned Commissioner (Appeals). Hence, the present Appeals by the assessee.

3. In relation to the appeals filed by the Revenue, on some set of facts, but for different periods, against confirmation of the demands by the Adjudicating Authority, appeals had been filed by the assessee before the Ld. Commissioner (Appeals), who rejected the same for non-compliance with the provisions of Section 35F of Central Excise Act, 1944. Hence, on further appeal before this Tribunal, the Appeals were remanded to the learned Commissioner (Appeals) for reconsideration of the issues afresh on merit in the light of the decision of Larger Bench of the Tribunal in ABB Ltd. Vs. Commissioner of C.E & S.T Bangalore 2009 (15) STR 23(Trb.-LB). The learned Commissioner (Appeals), after reconsidering the issues, decided the appeals in favour of the Assessee by setting aside the orders of the Adjudicating Authority. Hence, Revenue is in appeal.4. The learned Advocate Ms.Apana Hirangadi submitted that under an agreement between the Assessee and M/s PPPL in the year 2001, the Assessee had been manufacturing the Biscuits with brand name Parle from the raw materials and packaging materials supplied by M/s PPPL. It is stipulated in the said agreement that the Assessee would be required to deliver the manufactured biscuits at various depots of M/s Parle Products Pvt. Ltd located all over the country and also they were required to pay Excise duty on the price declared by M/s PPPL. In compliance with the conditions of Notification No.36/2001 CE(NT) dt. 26.06.2001 an authorization and joint declaration dt.15.09.2001 enclosing therewith the copy job work agreement was addressed to the Superintendent, Central Excise, Range-I, Division-I, Ahmedabad. She has submitted that the learned Commissioner (Appeals) erred in observing that since the Assessee had manufactured the goods on job work basis and cleared the goods at the factory gate only since the depots were belonging to M/s PPPL Pvt. Ltd, hence the CENVAT Credit on Service Tax paid on freight charges up to such depots is not admissible. The learned Advocate further submitted that the issue is squarely covered by the decision of this Tribunal in identical facts and circumstances in the case of M.P. Biscuits Pvt. Ltd Vs CCE Allahabad 2012 (282) ELT 563 (Tri-Del) and CCE Indore Vs Dhananjay Confectionary (P) Ltd 2010 (20) STR 696 (Tri-Del). She has also submitted that the period involved in the present Appeals was from August 2005 to February 2007 i.e. prior to the amendment to the definition of input service prescribed under Rule 2(l) of CENVAT Credit Rules 2004 w.e.f 01.04.2008, hence the Service Tax paid on outward freight from the place of removal i.e. from the factory gate to the depots of M/s Parle Products Pvt. Ltd would be eligible to CENVAT Credit in view of the decision of Hon'ble Gujarat High Court in the case of CCE Vs Parth Poly Wooven Pvt. Ltd. 2012 (25) STR 4 (Guj). Further, responding to the Revenues appeals, the learned Advocate has submitted that after analyzing the evidences on record and the principles laid down in the Larger Bench decision in ABBs case(supra) , the learned Commissioner (Appeals) had allowed the CENVAT Credit of Service Tax paid on inward freight as well as outward freight during the relevant period. Revenue has come in appeal on the grounds that there has been no arrangement/agreement between the Assessee and M/s PPPL to discharge the Service Tax on the said GTA service and the Larger Bench judgment in ABB Ltd.s case has not been accepted by the Revenue. She submitted that specific agreement between the Assessee and M/s PPPL has been made in this regard which has been communicated to the Range Superintendent on 15.09.2001, and the applicable excise duty on the finished goods and service tax on GTA service has been paid, therefore, Revenues appeals are devoid of merit.

5. Per Contra, the learned Authorized Representative for the Revenue has submitted that the biscuits manufactured by the Assessee on job work basis had been subjected to assessment under Section 4A of Central Excise Act, 1944 and the factory gate has been the place of removal in view of the decision of the Tribunal in the case of Kohinoor Biscuit Products Vs CCE Noida 2015 (37) STR 567 (Tri-Del). It is his contention that therefore, the Service Tax paid on outward freight from the factory gate to the depots of M/s Parle Products Pvt. Ltd is not eligible as CENVAT Credit to the assesse-appellant.

6. In her rejoinder, the learned Advocate for the Assessee has submitted that since the period involved in Kohinoor Biscuit Products case was November 2009 to October 2011, i.e. after amendment to the definition of input serviceprescribed under Rule 2(l) of CENVAT Credit Rules 2004, hence, the said judgment is not applicable to the facts of the present case. Also, she has submitted that the decision of the Kohinoor Biscuit Products case rests on the decision of the Tribunal in the case of M/s Ultratech Cement Ltd Vs CCE Raipur 2014 (35) STR 751 (Tribunal), which was challenged before the Hon'ble Chhatisgarh High Court and the Hon'ble High Court in their judgment, dt.05.08.2014, reported at 2014 (35) STR 641 (Chhatisgarh), held that the place of removal has to be decided in the facts and circumstances of each case, hence, the presumption of the Tribunal that place of removal is factory gate in the case of Excise duty charged at specific rate, is incorrect.

7. I have carefully considered the submissions advanced by both sides and perused the records. The dispute which needs to be addressed is: whether the Assessee, a job worker of M/s PPPL, is eligible to CENVAT Credit, on Service Tax paid on out ward freight charges (GTA services), for transporting the manufactured biscuits from their factory to the depots of M/s PPPL. The undisputed facts are that by an agreement entered into between the Assessee and M/s PPPL, the excisable goods viz. Biscuits was manufactured on job work basis and the Assessee had been authorized by the principal manufacturer i.e. M/s Parle Products Pvt. Ltd to carry out all procedural formalities including payment of Excise duty through their authorization letter dt.15.09.2001 duly communicated to the Range Superintendent in consonance with Notification No.36/2001 CE(NT) dt.26.06.2001. Also, it is not in dispute that the period in all these appeals was prior to 01.4.2008. This Tribunal in similar facts circumstances in M.P. Biscuits Pvt. Ltd.s case(supra), after analyzing the relevant agreement, observed as follows:-

11.?Reading of above provision clearly show that outward transportation of the manufactured product up to the place of removal falls within the definition of input service. The appellant has placed on record the authorization letter dated 15-3-2005 addressed by PBPL to Assistant/Deputy Commissioner, Central Excise, Varanasi authorising the appellant to manufacture biscuit on their behalf. Further perusal of the terms and conditions mutually agreed upon between PBPL and the appellant would show that as per the job work contract the appellant were required to process and manufacture biscuit, carry out inspection, packing and delivery to various depots of PBPL located all over the country as directed by PBPL. From the above stipulation in the contract, appellants were under obligation to transport biscuits to various depots of PBPL as such obviously the place of removal was/were depots where the appellant was required to supply manufactured biscuit as per direction of the appellant. Admittedly, the appellants have transported the goods to the depots/premises of the principal manufacturer and paid transportation charges including the Service tax. In this regard, the appellant have placed on record photocopies of Form TR-6 for payment of Service tax in respect of the period in question. Thus, it is apparent that the appellant has paid Service tax in respect of the input service i.e. the outward transportation of the biscuits to the place of removal. As such, in view of Rule 3 of Cenvat Credit Rules the appellant has rightly availed Cenvat credit.

8. I find that there is an arrangement/agreement between the Assessee and M/s Parle Products Pvt. Ltd had been in existence for manufacture of biscuits on job work basis and transportation of the manufactured biscuits to their various depots. Therefore, the aforesaid judgment is squarely applicable to the facts of the case. . I also find that the duty paid on input raw materials and packaging materials by M/s PPPL which was supplied for conversion into biscuits were availed as credit by the assessee and there is no dispute in this regard. I find force in the argument of the Ld. Adv. that the basis on which Kohinoor Biscuits case was rendered by the Division Bench of this Tribunal, that since the biscuits are assessable to Section 4A, hence the place of removal ought to be considered as factory gate, relying on the judgment of this Tribunal in Ultratech Cement Ltd case, cannot be considered a good law, as the said judgment was not accepted by Hon'ble Chhatisgarh High Court in their order dt.05.08.2014 reported as Ultratech Cement Ltd. Vs. Commissioner of Central Excise, Raipur 2014 (35) STR 641(Chattishgarh). Besides, the said judgment was rendered relating to the period 2009, that is, after amendment to the definition of input service w.e.f. 01.4.2008.

9. Also, it is crystal clear from the judgment of the Honble Gujrat High Court in Parth Polywoven Pvt. Ltd.s case(supra) that cenvat credit on GTA service(out ward freight ) from the place of removal to the purchasers premises prior to 01.04.2008 was admissible. Interpreting the scope of means & includes employed in the definition of input service as was in existence prior to 01.04.2008, their Lordships observed as:

18.?Bearing in mind the above judicial pronouncements, if we revert back to the definition of the term input service, as already noticed, it is coined in the phraseology of means and includes. Portion of the definition which goes with the expression means, is any service 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. This definition itself is wide in its expression and includes large number of services used by the manufacturer. Such service may have been used either directly or even indirectly. To qualify for input service, such service should have been used for the manufacture of the final products or in relation to manufacture of final product or even in clearance of the final product from the place of removal. The expression in relation to manufacture is wider than for the purpose of manufacture. The words and clearance of the final products from the place of removal are also significant. Means part of the definition has not limited the services only upto the place of removal, but covers services used by the manufacturer for the clearance of the final products even from the place of removal. It can thus be seen that main body of the definition of term input serviceis wide and expansive and covers variety of services utilized by the manufacturer. By no stretch of imagination can it be stated that outward transportation service would not be a service used by the manufacturer for clearance of final products from the place of removal.

19.?When we hold that outward transportation would be an input service as covered in the expression means part of the definition, it would be difficult to exclude such service on the basis of any interpretation that may be offered of the later portion of the definition which is couched in the expression includes. As already observed, it is held in several decisions that the expression includes cannot be used to oust any activity from the main body of the definition if it is otherwise covered by the expression means. In other words, the expression includes followed by means in any definition is generally understood to be expanding the definition of the term to make it exhaustive, but in no manner can the expression includesbe utilized to limit the scope of definition provided in the main body of the definition. To our mind this was also not the intention of the Legislature in the present case.

20.?There, of course, are certain areas which still remain to be cleared. It was vehemently contended before us by the counsel for the Revenue that later portion of the definition which provides for the inclusion clause limits the outward transportation service up to the place of removal. That being so, according to them, the outward transport service utilized by the manufacturer beyond the place of removal would not qualify as an input service within the definition of Rule 2(l). We may only notice two things in this regard. Firstly, in our view, when we find that outward transport service is covered by the main body of the definition which provides for means part, as specifically including any service directly or indirectly in or in relation to manufacture of final product or clearance of final product from the place of removal, no interpretation of the later part of the definition would permit us to exclude such a service form the sweep of the definition. Secondly, we notice that the definition of the term input service came to be amended with effect from 1-4-08 and instead of words clearance of final products from the place of removal, the words clearance of final products upto the place of removalcame to be substituted. What would be the position if the case had arisen after 1-4-2008 is a situation we are not confronted with. We, therefore, refrain from making any observations in this regard. We, however, cannot help noticing the change in th

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e statutory provisions which is at the heart of the entire controversy. In so far as the cases on hand are concerned, the statutory provisions cover the service used by the manufacturer in relation to the manufacture of the final products or even the clearance of final products from the place of removal. 21.?We must, however, for our curiosity reconcile the expression from the place of removal occurring in the earlier part of the definition with words upto the place of removal used in inclusive part of the definition. Counsel for the assessees submitted that when a manufacturer transports his finished products from the factory without clearance to any other place, such as godown, warehouse etc. from where it would be ultimately removed, such service is covered in the expression outward transportation up to the place of removal since such place other than factory gate would be the place of removal. We do appreciate that this could be one of the areas of the application of the expression outward transportation upto the place of removal. We are unable to see whether this could be the sole reason for using such expression by the Legislature. 22.?Be that as it may, we are of the opinion that the outward transport service used by the manufacturers for transportation of finished goods from the place of removal upto the premises of the purchaser is covered within the definition of input serviceprovided in Rule 2(l) of the Cenvat Credit Rules, 2004. 10. In these circumstances, the three appeals filed by the Assessee are hereby allowed and the two appeals filed by the Revenue are dismissed. 11. All the five appeals are disposed of as above.
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