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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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PJ/CASE LAW/2015-16/2841

Cenvat credit eligibility of service tax paid on outward freight.

Case:- COMMISSIONER OF C. EX., ROHTAK VERSUS HARYANA SHEET GLASS LTD.
 
Citation:- 2015 (39) S.T.R. 392 (P & H)
 
Brief facts:-  Present appeal under Section 35G of the Central Excise Act, 1944 (for short the ‘Act’) arises out of an order passed by the Central, Excise and Service Tax Appellate Tribunal, New Delhi (for short the ‘Tribunal’) dated 15-2-2012 (Annexure A-3). The Revenue has claimed the following substantial question of law :-
Whether the Service Tax paid on outward transportation of goods cleared from the factory (place of removal) would be an input service within the meaning of Rule 2(l) of Cenvat Credit Rules, 2004?
The assessee is registered in the category of ‘Goods Transport Agency’ and is availing the facility of Cenvat credit under the Cenvat Credit Rules, 2004 (for short the ‘Rules’). During the visit of the officers of the Central Excise, it was noticed that the assessee paid Service Tax @ 10.2%, inclusive of Education Cess, on the outward freight charges and taken the Cenvat credit. The stand of the Revenue is that the assessee is not entitled to Cenvat credit on Service Tax towards outgoing freight. A show cause notice was issued to the assessee. The stand of the assessee was that the transportation of goods from the place, i.e., factory to the premises of the petitioner are to be treated as input service. The said stand of the assessee was not accepted and for the Cenvat credit an amount of Rs. 26,53,863/- paid as the Service Tax on outward transport service was declined. The adjudicating authority also raised the demand of interest and penalty of the equivalent amount of the duty imposed. The Commissioner of Central Excise (Appeals) affirmed the order passed by the adjudicating authority but the Tribunal allowed the appeal relying upon the judgment of the Karnataka High Court rendered in CCE, Bangalore and Ors. v. ABB Ltd. and Ors. - 2011 (23) S.T.R. 97 (Kar.).

Respondent’s contention:-In the case of Ambuja Cements Ltd. v. Union of India, 2009 (236) E.L.T. 431 (P&H) = 2009 (14) S.T.R. 3 (P & H), this Court relied upon a circular issued by the Central Excise Board and Customs on 23-8-2007 opining that the “Place of Removal” has to be determined by taking into account the facts of each case. Considering the definition of expression “input service” in Rule 2(l) of the Rules that for the transportation purpose, the ownership of the goods and the property in the goods has not been transferred to the seller till the delivery of the goods in acceptable condition to the purchaser at his doorsteps, therefore, the benefit of input service, the transportation charges has been granted for availing the input service credit.
Rule 2(l) defining the “input service” 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 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, and includes services used in relation to 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, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal; but excludes services.
 
Reasoning of judgment:-A reading of the above extract would show that outward transportation upto place of removal falls within the expression “input service”. The place of removal, in terms of the circular of the Board is a question of fact. If a manufacturer is to deliver the goods to the purchaser, the place of removal would not be a factory gate of the manufacturer but that of the purchaser.
The decision of this Court in Ambuja Cement’s case (supra) furnishes justified cause to the Tribunal to allow the appeal of the
manufacturer. There is no evidence that the property in goods stood transferred to the purchaser at the factory door of the assessee.
In view of the said fact, they do not find any substantial question of law arises for consideration. Accordingly, the appeal filed by the revenue is dismissed.
 
Decision:- Appeal dismissed.
 
Comment:- The analogy of the case is that as in the present case, the ownership of the goods and the property in the goods has not been transferred to the seller till the delivery of the goods in acceptable condition to the purchaser at his doorsteps, therefore, the place of removal is to be considered as customer’s premises and the cenvat credit of service tax paid on transportation charges is available.

Prepared by:- Monika Tak

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