HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR C.E.A. NO.85 OF 2014 DATED:23.7.2014 Between:
The Commissioner of Customs, Central Excise & Service Tax Guntur … Appellant And M/s. The KCP Limited Macheria Guntur District … Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR C.E.A. NO.85 OF 2014 JUDGMENT: (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is preferred against a small order of the learned Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Bangalore, dt.14.8.2013, and is sought to be admitted on the following substantial questions of law:
a. “Whether the CESTAT, Bangalore, is justified in allowing the cenvat credit on outward transportation beyond the place of removal, which is not specifically covered in the definition of “input services” under Rule 2(1) of CENVAT Credit Rules, 2004?
b. Whether the CESTAT, Bangalore, is justified in relying on the decision in the case of Commissioner vs. ABB Ltd. [2011 (23) STR 97 (Kar.)] when the appellant is not within the jurisdiction of the Hon’ble Karnataka High Court, against which civil appeal is preferred by the Revenue that is pending before the Hon’ble Supreme Court?
c. Whether the Hon’ble CESTAT, Bangalore, is justified in allowing the assessee, the relief of cenvat credit claimed in regard to post clearance costs, which would be contrary to the rules of Cenvat Credit Rules as well as the provisions relating to the valuation of excisable goods though Section 4 of the Central Excise Act, 1944 makes it clear that excise levy cannot take any cost beyond the point of removal of goods and therefore, input credit also cannot be in relation to any cost incurred after the removal of goods?
d. Whether the CESTAT, Bangalore, is justified in allowing the assessee to take credit of service tax paid on freight for outward transportation of their goods from factory to customer’s place during the impugned period, thereby allowing the disjunctive usage of the definition of “input service” which defeats the intention and purpose of legislation?
By the impugned order, the learned Tribunal found on fact that the appeal should not have been preferred in view of Central Board of Excise & Customs Circular No.390/Misc./163/2010-JC, dt.17.8.2011, as the duty involved in the case was admittedly Rs.2,75,229/-. It appears that undisputedly the appeal was filed after the notification was enforced.
Learned counsel appearing for the appellant, however, argued that since the dispute relates to prior to the aforesaid notification, appeal should have been admitted by the Tribunal. He argued that in one of such matters, being C.E.A. No.65 of 2014, this Court has been pleased to admit the appeal. We have called for the original file of the matter referred to by the learned counsel appearing for the appellant and it appears that we have admitted the appeal on fact that at the time of preferring appeal the Circular was not in force. According to us, the date of filing of the appeal is reckoning factor in order to see whether above notification is to be applied or not and it is not the time when the dispute arose.
Hence, we do not find any reason to interfere with the impugned order and the appeal is dismissed. There will be no order as to costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J 23.7.2014 bnr