CX - The assessee is engaged in manufacture of automotive cables and are also registered as EOU - On scrutiny of records by Department for period April 2010 to December 2013, it was noticed that assessee had availed CENVAT credit on missing invoices and ineligible input services like outward transportation, housekeeping, factory extension, rent-a-cab service and excess credit on some invoices - Subsequently, assessee produced the missing invoices and on verification, it was found that assessee was eligible for credit on these invoices for an amount of Rs.14,86,290/- and in respect of balance credit of Rs.2,76,597/- the assessee could not produce invoices and the assessee thereafter reversed the amount of Rs.2,76,597/- along with interest and 25% penalty - The Commissioner has denied the CENVAT credit on outdoor catering service on the ground that vide Notfn 03/2011-CE, the definition of 'input service' was amended wherein the outdoor catering services were specifically excluded by exclusion clause "C" in definition under Rule 2(1) of CCR - Further, regarding the credit of Rs.79,510/- on rent-a-cab service, the Commissioner (A) has denied the credit on the ground of specific exclusion from the definition of input service and also relying on the Tribunal's decision in case of AET Laboratories Ltd. 2015-TIOL-2828-CESTAT-BANG - Further, Larger Bench of Tribunal in case of Wipro Ltd 2010-TIOL-3256-CESTAT-Bang-LB has held that outdoor catering service is not an input service after the amendment from 01.04.2011 - The denial of credit on rent-a-cab service is also upheld as after the amendment, it is specifically excluded - Regarding the freight outward charges, CENVAT credit has been denied on the ground that the Joint Commissioner found that the invoices submitted on the credit was availed on transportation of export cargo up to the place of destination i.e. outside Indian Territory - The case of assessee is that he has claimed outward transportation up to the Port of export and has not claimed beyond the Port of loading and the Commissioner (A) has wrongly relied upon the O-I-O which is based upon the observation of Joint Commissioner that in the invoices, assessee has claimed CENVAT credit on transportation up to the place of destination whereas, in fact, assessee has only claimed CENVAT credit on transportation up to the Port which is a place of removal in case of export - The case needs to be remanded back to the original authority for purpose of verifying whether the assessee has claimed CENVAT credit on freight outward up to the place of the Port or beyond - For this purpose, the matter is remanded back to the original authority - CENVAT credit on catering service and rent-a-cab service are disallowed and for outward transportation service, the matter is remanded to the original authority: CESTAT

- Appeal disposed of: BANGALORE CESTAT

2019-TIOL-1420-CESTAT-AHM

Ultratech Cement Ltd Vs CCE

CX - The assessee is engaged in manufacture of cement which is sold on MRP Basis as well as non MRP basis - They are making MRP based sale to Dealers/ Stockist in case of which MRP is mentioned on bags and Non MRP sale is made to users e.g. Industrial consumers and institutional customers in case of which no MRP is mentioned on bags - The cement is directly dispatched to the customers from factory or to the Depot and they are availing services of GTA for transportation of cement - The assessee was issued SCNs proposing to deny cenvat credit availed on service tax paid on outward transportation of service tax - The Chartered/ Cost Accountant has certified that the goods were sold on FOR basis by assessee and the freight/ damages in transit was their responsibility till the goods reached the doorstep of Customers - The consignment notes were raised upon assessee and they did not charge any amount except price of the goods from customers - Thus, as the ownership of goods remained with assessee till the goods reached to the customer's doorstep and the freight charges as well as damage to the goods till destination were borne by assessee, hence they are eligible for credit of service tax paid by them on outward freight - As regard the submission made by assessee that they have been operating as per the guideline given in the Circular dated 22.12.2014 and 23.08.2007 which was operative at the relevant time, therefore, even though the same were withdrawn w.e.f. 08.06.2018, but at the relevant time the benefit of said Circular shall be available - Force found in the argument as the law on this issue has been settled time and again by various judgments that beneficial Circular cannot be withdrawn retrospectively - Consequently, the benefit of the said Circulars shall be available to the assessee during the material period of this case - As regard limitation, the issue was not free from doubt and right from introduction of Cenvat Scheme under Cenvat Credit Rules, the outward GTA was the matter under litigation and for that reason the Government has to come out with clarification thereafter the matter was subject to various litigation before Tribunal, b High Courts and Supreme Court, therefore no malafide intention can be attributed to assessee, therefore, wherever the demand is for extended period, the same will also not be sustainable on the ground of time bar: CESTAT.

- Appeals allowed: AHMEDABAD CESTAT