we are a manufacturer of LAM Coke. our final product is exempted from the excise duty. now my point is that we sold the goods Ex-Plant Rate.& on behalf of the purchaser we arranged the transportation & also paid the Transportation & service tax(25 %of transportation s.t. paid) on transportation by us. & another side we purchase the raw material, paid the transportation & service tax for inward transportation. now plz ADVISE ME that may I avail & utilise A CENVAT CREDIT OF SERVICE TAX WHICH PAID ON THE INWARD TRANSPORTATION for the payment of SERVICE TAX PAYABLE ON OUTWARD TRANSPORTATION.
plz advise me & may i avail this benefit for the last year i.e. 2007-08.
but requested to all to refer to the case of INDIA CEMENT LTD. regarding this matter in this matter tribunal give a right to take a credit agst. payment of service tax
26 March 2009
GTA Service - Cenvat Credit - It is convention that when matter is referred to Larger Bench, Stay of recovery of amount is granted and there is no reason to deviate from such convention : Tribunal
By TIOL News Service
MUMBAI, DEC 18, 2007 : IN the case of India Cements Ltd. [ 2007-TIOL-1248-CESTAT-BANG ], the Tribunal came to the conclusion that the transportation from the factory to the destination of the buyer becomes an 'outward transportation' & accordingly in terms of Rule 2(1)(ii) [First limb], this service becomes an 'Input Service' meaning to say that credit was available. However, since this view was at variance with the interpretation carried by the co-ordinate Bench of Tribunal in the case of Gujarat Ambuja Cement [ 2007-TIOL-539-CESTAT-DEL ] , the matter was referred to the Larger Bench for resolving the issue.
Probably, the assessee Inox Air Products [ 2007-TIOL-1829-CESTAT-MUM ], whose case we had reported earlier, were unfortunate when their appeal, on a similar issue, had come before the WZB because they were ordered to make a pre-deposit of Rs 1,25,000/-. This despite the fact that the Tribunal has in the case of Capital Paper Mills [ 2002-TIOL-384-CESTAT-DEL ] held that when the matter is sub judice before the Larger Bench, waiver of pre-deposit of duty and Stay of the recovery is required to be granted & that this was the practice in such cases as mentioned by the Tribunal in the case of Uni Products (India) Ltd. [ 2002-TIOL-388-CESTAT-DEL ] .
Fortunately, in the case of the Cement company that we are reporting today, the Tribunal observed that the dispute stood referred to the Larger Bench in the India Cements Ltd. case and hence the application for pre-deposit of amounts involved was allowed & the recovery thereof stayed till the disposal of the appeal.
Such a direction, the Tribunal observed, is the convention when the matter is referred to a Larger Bench and there was no reason to deviate from such a convention.
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