M/S. Anurag Ferro Products Pvt. Ltd vs Commr. Of C. Ex., Customs & Service Tax

(Arising out of the Order-in-Appeal No. 18/B-II/07 dated-12/9/2007 passed by the Commissioner (Appeals), Central Excise, Customs & Service Tax, BBSR-II)

For approval and signature of: DR. I.P. LAL, HONBLE JUDICIAL MEMBER

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1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?

3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities ?

M/s. Anurag Ferro Products Pvt. Ltd. APPELLANT(S) VERSUS Commr. of C. Ex., Customs & Service Tax, BBSR-II RESPONDENT(S)

APPEARANCE

Sri K. Kurmi, Advocate FOR APPELLANT(S) Sri A. Roy, Supdt., (A.R.) FOR THE RESPONDENT(S)

CORAM: DR. I.P. LAL, HONBLE JUDICIAL MEMBER

DATE OF HEARING & DECISION : 20/03/2015

ORDER NO : FO/A/75155/2015

Per DR. I.P. LAL

The appeal is filed against Order-in-Appeal No. 18/B-II/07 Dated-12/9/2007 passed by the Commisssioner, Central Excise, Customs & Service Tax, BBSR-II.

2. The Ld. Advocate submits that the dispute in the present case relates to availment and utilization of CENVAT Credit for the period January, 2005 to April, 2005 and September, 2005 and September, 2005 on outward transportation of their final products from the factory gate. It is the contention of the Revenue that during the relevant time, outward transport from the place of removal i.e. the factory gate does not fall within the meaning of input service as defined under Rule 2 (l) of the CENVAT Credit Rules, 2004. He submits that the Ld. Commissioner (Appeal) has followed Board Circular No. 97/8/2007 dated-23/08/2007, issued wholly relying on the decision of the tribunal in case of Gujarat Ambuja Cement Ltd. Vs. C.C.E. reported in (2007) 006 STR 249 (Tri.). The said decision of the tribunal has been doubted by the Co-ordinate Bench of Tribunal, Bangalore in case of India Cement Ltd. Vs. CCE, reported in 2007 (8) S.T.R. 43 (Tri) and the matter is referred to Larger Bench. He took an alternate plea that the appellants case is that the goods were exported and therefore, the place of removal is not the factory but the port. Freight incurred from the factory to the Port is integral part of price of the goods. Accordingly, the credit has been correctly availed.

3. Per contra, the Ld. A.R. for the Revenue submits that plea taken before this Tribunal was not taken before the lower authorities.

4. Heard both sides and perused the records. Since the plea taken by the Ld. Advocate that in the present case, that the goods were exported and therefore, they were eligible to avail credit of the Service Tax duty on outward transportation of their final products upto the places of removal i.e. port was not taken before the lower authorities and therefore, not considered by them. Accordingly, I direct that the matter be remanded back to the Ld. Adjudicating Authority for verification of the facts narrated by the Ld. Advocate and thereafter pass a speaking order after hearing the appellant. All issues are kept open. The appeal is allowed by way of Remand.

(Appeal is allowed by way of Remand) Sd/- 26/03/2015 (I.P. LAL) Technical Member

k.b/-

Excise Appeal No. E/628/2007

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