Sail Refractory Company Ltd vs Commissioner Of Central Excise & St

[Arising out of Order-in-Appeal No.59/2014-ST dated 7.2.2014 passed by the Commissioner of Central Excise (Appeals), Salem]

SAIL Refractory Company Ltd. Appellant

Versus

Commissioner of Central Excise & ST, Salem Respondent

Appearance:

Smt. L.Mythili, Advocate For the Appellant Ms. Cecillia Parthasarathy, AC (AR) For the Respondent

CORAM:

Honble Shri R. Periasami, Technical Member

Date of hearing/decision :16.6.2015

FINAL ORDER No.40634-40635/2015

As the issue lies on a short compass, after dispensing with the requirement of predeposit, both the appeals are taken up for disposal.

2. Both the appeals are arising out of a common Order-in-Appeal dt. 7.2.2014 passed by Commissioner (Appeals). The short issue relates to denial of cenvat credit availed on GTA services on outward transportation of goods. The adjudicating authority in respect of two SCNs confirmed a total demand of Rs.5,55,103/- as ineligible cenvat credit taken during the periods June 2007 to December 2007.

3. After hearing both sides, I find that in appellant's own case, the very same issue has already been decided by Tribunal's Final Order No.40030/2012 dt. 11.12.2012 in favour of assessee wherein the Tribunal rejected Revenue's appeals. The relevant paragraph of Tribunal's order is reproduced as under :-

"We find that this decision of the Tribunal has been affirmed by the Honble Karnataka High Court in an appeal filed by the Revenue against the said decision of the Larger Bench of Tribunal as reported at CCE & S.T., LTU, Bangalore VS ABB Ltd. [2011 (23) S.T.R. 97 (Kar.)]. The Honble Karnataka High Court did not agree with the argument that transportation of goods from the place of removal will be covered by the expression activities relating to business used in the definition of input services. But the Honble High Court did order that prior to 1.4.2008, when definition of Rule 2(l) (ii) was amended vide Notification No.10/2008-CE (NT) dt. 1.3.2008, credit was available for services utilized for removal of goods from the place of removal and hence CENVAT credit is to be allowed on the input service for period prior to 1.4.08. Since the matter is no longer res integra, the appeal filed by the Revenue is dismissed, following the ratio of the decision of the Honble Karnataka High Court cited supra."

The above Tribunal's order relates to the period March 2005 to May 2007. Ld. A.R. contended that they have filed a C.M.A before Hon'ble High Court, Madras against the above final order of Tribunal in C.M.A.No.3274/2013. Both sides submit that the Tribunal order is not stayed as no stay is granted and the C.M.A. is still pending before Hon'ble High Court, Madras. Further I find that place of removal has been amended w.e.f. 1.3.2008 and the present case relates to the period prior to the amendment. Therefore, by following Tribunal's Division Bench decision (supra) in the appellant's own case, the appellants are eligible for credit of service tax paid on GTA outward transportation. Accordingly. impugned order is set aside. Both the appeals are allowed. Stay applications are disposed.

(Dictated and pronounced in open court)

(R. PERIASAMI) TECHNICAL MEMBER

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