Philips Carbin Black Ltd vs Cce Muvattapuzha

[Arising out of Order-In-Appeal No 33-2008 dated 31/01/2008 passed by CCE,C&ST(Appeals), Cochin]

[Arising out of Order-In-Appeal No 78-2008 dated 28/08/2008 passed by CCE,C&ST(Appeals), Cochin ]

For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

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?

PHILIPS CARBIN BLACK LTD. KARIMUGHAL, BRAHMAPURAM. Appellant(s)

Versus

CCE MUVATTAPUZHA NULL Respondent(s)

Commissioner of Central Excise, Customs and Service Tax COCHIN-CCE NULL C R BUILDING, I S PRESS ROAD, ERNAKULAM, COCHIN, - 682018 KERALA Respondent(s)

Appearance:

Shri Sandip Gopalakrishnan, Advocate MENON & PAI P.B. NO.1911 IS PRESS ROAD, COCHIN - 682018 KERALA For the Appellant

Shri N. Jagdish, Superintendent(AR) For the Respondent

Date of Hearing: 23/01/2015

Date of Decision: 23/01/2015

CORAM:

HON'BLE Shri B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20148-20149 / 2015

Per : B.S.V.MURTHY

The issue involved in both the appeals is whether the appellant is eligible for the CENVAT credit of service tax paid on outdoor transportation of the goods from the place of removal. The learned counsel relied upon the decision in the case of ABB Ltd. Vs. CCE&ST, Bangalore [2009-TIOL-830-CESTAT-BANG-LB] and it was upheld by the Honble High Court of Karnataka as reported at 2011(23) STR 93 (Kar.). Further he also submitted that the very same issue had come up before the Honble High Court of Andhra Pradesh in the case of CC&CE, Hyderabad-III Vs. Grey Gold Cements Ltd. [2014(34) STR 809 (AP)] wherein the Honble High Court also took the same view. Honble High Court of Andhra Pradesh went on to observe even if the freight does not form part of the value, credit would still admissible.

2. Learned AR would rely upon the decision of the Honble High Court of Kolkata in the case of CCE, Kolkata-VI Vs. Vesuvious India Ltyd. [2013-TIOL-1038-HC-KOL-ST] to submit that Honble High Court after considering the decision of the Honble High Court of Karnataka in the case of ABB Ltd., held that circular cannot amend the rules and took the view that amendment made on 01/04/2008 was in the nature of clarification and therefore credit is not admissible even if the period is prior to 01/04/2008. He submits that this being the latest decision, that should be followed.

3. I find that in the present case there are two High Court decisions under whose jurisdiction this Tribunal functions. Under the circumstances, in my opinion, it would be appropriate for me to follow the decisions of the jurisdictional High Court. Accordingly I am unable to follow the decision of the Honble High Court of Kolkata which is in favour of the Revenue. Since the decisions of the jurisdictional High Court are in favour of the assessee, under whose jurisdiction this Tribunal functions, the appeals are allowed with consequential relief, if any, to the appellant.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER

Raja..

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