w w w . L a w y e r S e r v i c e s . i n



M/s. DVB Technologies Pvt. Ltd. v/s CGST & Excise, Siliguri


Company & Directors' Information:- M S C TECHNOLOGIES LIMITED [Active] CIN = U64201DL2002PLC115040

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Company & Directors' Information:- AT TECHNOLOGIES PRIVATE LIMITED [Active] CIN = U72900PN2007PTC130827

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    Ex. Appeal No. 78529 of 2018 & Order No. FO. 75197 of 2018

    Decided On, 18 February 2019

    At, Customs Excise amp Service Tax Appellate Tribunal East Regional Bench Kolkata

    By, THE HONOURABLE MR. P. K. CHOUDHARY
    By, JUDICIAL MEMBER

    For the Appellant: Shyamal Dey, Advocate. For the Respondent: A. Roy, Supdt. (A.R.).



Judgment Text


1. The present appeal is filed by the appellant against the Order-inAppeal No.33/SLG-CGST/2018 dated 21.06.2018.

2. The facts of the case in brief are that the appellant availed cenvat credit of service tax paid on outward freight, whereas their place of removal is the factory gate. The period of dispute is from 01.01.2005 to 2007-2008, 2008-2009 and 2009-2010 (Upto November, 2009). Show-cause notice dated 25.03.2010 was issued. Show-cause notice mentioned that the assessee had already reversed/paid amounts of Rs.17,852/- and Rs.12,617/- i.e. for the period post 01.04.2008. The Adjudicating Authority confirmed the demand of Rs.1,15,681/- and appropriated an amount of Rs.30,469/- as paid by the appellant. Interest of Rs.2,694/- has already been paid and the same has already been appropriated in the impugned order. A penalty of Rs.85,212/- was imposed under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. 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 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 upto the place of removal;”

3. The Full Bench of CESTAT in M/s. ABB Limited case, which has been upheld by the Karnataka High Court as mentioned above, has interpreted the aforesaid Rule observing that it is in two parts. In the first part, input service is defined with the expression “means” and in that 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 concerned.

5. Coming back to the first part of the definition as to what input service means, the Full Bench of the CESTAT held that all input services which are used by the manufacturer, whether directly or indirectly, in or in relation to manufacture of final products and clearance of final products from the place of removal are concerned, they are treated as input services and Cenvat credit in respect of expenditure incurred in relation to such services would be admissible. The expression with which the CESTAT was concerned, and which was the subject matter of discussion, was as to what would be the meaning of “from the place of removal”. Obviously, any input service given for clearance of the final products “from the place of removal” and tax paid thereon the Cenvat credit has to be given. The question is from the place of removal up to what place. The assessees had claimed the tax paid on the transportation of final products from the place of removal (i.e. the place of manufacture) to either 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 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 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., 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 th

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e 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 of removal which has to be upto either the place of depot or the place of customer, as the case may be. This aspect has also been noted by the High Court in the impugned judgment in the following manner : “However, the interpretation placed by us on the words ‘clearance of final products from the place of removal’ and the subsequent amendment by Notification 10/2008-C.E. (N.T.), dated 1-3-2008 substituting the word ’from’ in the said phrase in place of ‘upto’ makes it clear that transportation charges were included in the phrase ‘clearance from the place of removal’ upto the date of the said substitution and it cannot be included within the phrase ‘activities relating to business’.” 5. By respectfully following the ratio as laid down by the Hon’ble Supreme Court, I set aside the impugned order and the appeal filed by the appellant is allowed.
O R







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03-07-2018 Infoplus Technologies Pvt. Ltd., Represented by its Director, Sakunthala Devi Versus Pondicherry University represented by its Registrar, Puducherry High Court of Judicature at Madras
03-07-2018 M/s. Enable Technologies Pvt. Ltd. Versus Shankar Krishna Murthy High Court of Delhi
21-06-2018 Ducon Technologies (India) Pvt. Ltd Versus Commissioner of Central Excise Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
01-06-2018 M/s. Celex Technologies Pvt. Ltd. Through Director/authorized Signatory Versus State of Rajasthan, Through Chief Secretary, Govt. of Rajasthan, Secretariat & Others High Court of Rajasthan Jaipur Bench
29-05-2018 Axiscades Aerospace & Technologies Pvt. Ltd. (Formerly Known as Axis Aerospace & Technologies Pvt. Ltd.) Versus Union of India & Others High Court of Delhi
21-05-2018 In Re: Akamai Technologies Inc Authority For Advance Rulings Income Tax New Delhi
09-05-2018 M/s. Qube Cinema Technologies Pvt. Ltd. Versus GST & CCE, Chennai North Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
09-05-2018 Qube Cinema Technologies Pvt. Ltd V/S GST & CCE, Chennai North Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
07-05-2018 ATCOM Technologies Limited Versus Y.A. Chunawala & Co. & Others Supreme Court of India
07-05-2018 Babin Technologies Pvt. Ltd., Kinfra Techno Industrial Park, Malappuram Versus Karthika, Choorikovval, Kodakkad P.O., Kasaragodu Dist. & Another Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
04-05-2018 Cummins Technologies India Ltd V/S CCE & ST, Meerut-II Customs Excise Service Tax Appellate Tribunal New Delhi
03-05-2018 Savita Oil Technologies Ltd V/S Commissioner of Central Excise, Raigad Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
03-05-2018 M/s. Avalon Technologies (P) Ltd., Rep by its Authorised signatory P. Sylvester Versus The Regional Provident Fund Commissioner (C&R) High Court of Judicature at Madras
24-04-2018 Commissioner of Income Tax, Central-III Versus HCL Technologies Ltd. Supreme Court of India
23-04-2018 Covidh Technologies Limited (formerly ?Aptus Industries Limited?) Versus Securities & Exchange Board of India SEBI Securities Exchange Board of India Securities Appellate Tribunal
06-04-2018 Shango Technologies Private Limited V/S Chemplast Sanmar Ltd. High Court of Judicature at Madras
23-03-2018 Pragati Vidyaniketan High School Rep. by its Correspodnent Madhusudan Versus Mind Shaper Technologies Pvt. Ltd. Rep. by its Managing Director Telangana State Consumer Disputes Redressal Commission Hyderabad
14-03-2018 Vayam Technologies Ltd. Versus Hewlett Packard Finacial Services (India) Pvt. Ltd. High Court of Delhi
13-03-2018 Balwinder Singh Versus The Managing Director, INTEX Technologies (India) Ltd. & Another Union Territory Consumer Disputes Redressal Commission UT Chandigarh
08-03-2018 Vayam Technologies Limited Versus Hewlett-Packard Financial Services (India) Private Limited High Court of Delhi
26-02-2018 KLA Construction Technologies Pvt. Ltd. Versus CKG Realty Pvt. Ltd. National Company Law Appellate Tribunal
23-02-2018 In the matter of: Sonik Technologies Private Limited, Bikaner Versus Registrar of Companies, Jaipur National Company Law Tribunal New Delhi
23-02-2018 Shilpi Cables Technologies Ltd V/S C.C.E.-Alwar Customs Excise Service Tax Appellate Tribunal New Delhi
16-02-2018 Commissioner of Central Excise, Pune-I Versus M/s. Sciformix Technologies Private Ltd. Customs Excise amp Service Tax Appellate Tribunal West Zonal Bench At Mumbai
30-01-2018 Raheja Developers Limited Versus Proto Developers & Technologies Limited & Others High Court of Delhi
19-01-2018 HCL Technologies Ltd V/S CC & CE & ST, Noida Customs Excise Service Tax Appellate Tribunal Regional Bench Allahabad
16-01-2018 XS Infosol Pvt. Ltd. Versus GLS Technologies Pvt. Ltd. & Others High Court of Delhi
12-01-2018 Real Image Media Technologies P. Ltd V/S Commissioner of Central Excise, Chennai-II Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
11-01-2018 Madras Port Trust Rajaji Salai, Chennai Rep. by its Chief Engineer Versus S&S Enviro Technologies Limited Ambattur Industrial Estate Chennai & Others High Court of Judicature at Madras