Commissioner Of Central Excise, ... vs M/S. Rain Industries Ltd

[Arising out of Order-in-Appeal No. 37/2011 (T) ST dated 31/10/2011 passed by Commissioner of Central Excise, Customs & Service Tax, (Appeals), Guntur.]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Commissioner of Central Excise, Customs & Service Tax TIRUPATI 9/86-A, BEHIND WEST CHURCH COMPOUND, AMARAVATHI NAGAR, M.R.PALLI, - 517502. AP Appellant(s)

Versus

M/s. Rain Industries Ltd BOINCHERUVUPALLI (VILLAGE), PEAPULLY (MANDAL), KURNOOL DIST AP Respondent(s)

Appearance:

Mr. S. Teli, Dy. Commissioner (AR) For the Appellant

Mr. K. Nagaraja Rao, Advocate C-403, Keshav Dale, Anand Nagar Colony, Khairatabad, HYDERABAD  500 004.

For the Respondent

Date of Hearing: 19/06/2015

Date of Decision: 19/06/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 21389 / 2015

Per : ARCHANA WADHWA

Being aggrieved with the order passed by Commissioner (A) Revenue has filed the present appeal.

2. After appreciating the arguments advanced by both the sides I find that the issue relates to availment of CENVAT credit of service tax paid on outward transportation of the goods. It is seen from the show-cause notice that the allegation is that the appellants have sold their final product i.e., cement at the factory gate itself and thereafter the goods stand transported to the buyers premises, in which case the benefit of credit of service tax would not be available to them. On the other hand, the Commissioner (A) in his impugned order has accepted the assessee stand that the sales were on FOR destination basis and they continued to remain the owner till the goods were delivered to the buyer destination. Accordingly, by applying Larger Bench decision of Tribunal in the case of ABB Ltd. as upheld by Karnataka High Court, allowed them the benefit.

3. The factual position is not clear. Neither side has been able to establish as to whether the sales were on ex-factory basis or on FOR destination basis. As such, I deem it fit to set aside the impugned order and remand the order to the original adjudicating authority for verification of the above fact and to decide the matter afresh after applying the law declared by various courts on the said issue.

Revenues appeal is thus allowed by way of remand.

(Order pronounced in open court)

ARCHANA WADHWA JUDICIAL MEMBER

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