At, High Court of Judicature at Allahabad
By, THE HONOURABLE CHIEF JUSTICE MR. DHANANJAYA YESHWANT CHANDRACHUD & THE HONOURABLE MR. JUSTICE PRADEEP KUMAR SINGH BAGHEL
For the Appellant: Ashok Kumar, M.H. Patil, Praveen Kumar, Trapti Gupta, Advocates. For the Respondent: Ramesh Chandra Shukla, Advocates.
1. The appeal by the assessee arises from a decision of the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, dated 21 April 2014. The following questions of law have been formulated in support of the appeal:
"(1) Whether Tribunal was justified in denying the cenvat credit of service tax paid and freight paid by M/s. Parle on inward and outward transportation (from the Appellants' factory to depots of M/s. Parle) on the ground that depots of M/s. Parle cannot be the 'place of removal' and that freight charges were not borne by the Appellants but M/s. Parle;
(2) Whether the Cenvat Credit of Service Tax paid on outward freight paid to Goods Transport Agency (GTA) is deniable on the ground that in case of finished goods governed by the provisions of Section 4A of CEA, 1944, 'place of manufacture' is 'place of removal' and Cenvat credit under Rule 2(1) is not admissible beyond the place of removal, in a case, where, 'Retail Sale Price' under Section 4A is the maximum price inclusive of freight and transport charges till the ultimate consumer.
(3) Whether Tribunal was justified in denying the cenvat credit of service tax paid on outward transportation up to the depots of M/s. Parle, in a case where, for earlier period, in Appellants' own case, in the same facts of the case, the Tribunal has allowed the credit."
The facts are not in dispute. The appellant manufactures biscuits on raw material supplied by Parle Biscuits at its factory. The finished goods are cleared from the factory of the appellant to the Depot of Parle Biscuits on payment of duty. The goods are cleared at the factory gate. Significantly, both in the order of the Commissioner (Appeals) as well as in the order of the Tribunal, it has been found that as a matter of fact the goods are not cleared "FOR Destination". The place of removal is the factory gate of the appellant. The cost of freight for transportation of the finished goods is admittedly borne by Parle Biscuits. No amount towards freight has been borne by the appellant, in terms of the agreement between the appellant and Parle Biscuits.
2. On this admitted factual position the Commissioner (Appeals) had held that the appellant was not entitled to cenvat credit in respect of the service tax paid on the GTA Services envisaging the transportation of the goods.
3. Rule 2(1) of the Cenvat Credit Rules, 2004 defines the expression "input service" to mean any service (i) used by a provider of taxable service for providing an output service; or (it) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal.
4. The appellant sought to place reliance on the expression 'place of removal' as defined in Section 4(3)(c) of the Central Excise Act, 1944 to mean inter alia 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.
5. In the present case, the clear finding, which has been recorded both by the Commissioner (Appeals) and by the Tribunal, is that the sale had not taken place on an "FOR Destination" basis. Hence, the place of removal in the present case is the factory gate of the appellant and not the Depot of Parle Biscuits. As a matter of fact, as held by the Commissioner (Appeals), the liability on account of freight is borne by Parle Biscuits. No amount was borne by the appellant towards freight under the agreement with Parle Biscuits. Hence, in this view of the matter, the Tribunal was justified in coming to the conclusion that the Cenv
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at Credit on Service Tax paid on GTA Service availed for the transportation of the goods from the factory of the appellant to the Depot of Parle Biscuits, has been correctly denied. The view which has been taken by the Tribunal is in accordance with law. 6. The appeal, therefore, does not give rise to any substantial question of law. It is, accordingly, dismissed. There shall be no order as to costs.