Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of Ramesh Nair (Judicial Member) and Raju (Technical member) allowed an appeal which involved the issue of admissibility of the Cenvat Credit in respect of outward GTA.
Mr Mrugesh Pandya, counsel appearing on behalf of the appellant submitted that on the identical facts, in the appellant’s own case Cenvat Credit had been allowed by this Tribunal in the case of Ultratech Cement Ltd 2007 (6) STR 364 (Tri. Ahd) and Sanghi Industries Ltd. 2019 (369) ELT 1424 (Tri- Ahd) and that the issue was no longer in dispute.
The Tribunal carefully perused the submissions and observed that facts and documents showed that sale of goods is on FOR basis, the freight was paid and born in bond by the appellant. Sale price was inclusive of freight on which excise duty was charged. The Tribunal further reiterated the observation made by the Tribunal in order no. A/10338 of 2021 dated 28-01-2021 and M/10118 of 2021 dated 03-06-2021.
“4. I have carefully considered the submission made by the both the sides and perused the records. I find that there is no dispute that original authority has gone through the document such as sale invoices, LR copies & CA Certificate and allowed the credit considering the sale is on FOR basis. On careful perusal of the invoices, I find that invoices clearly mentioned a condition that the sale is on FOR basis and risk upto the destination is covered. It is also not the case of the department that outward transit insurance was paid by the consignee. In this case it is clear that the sale is on FOR basis and sale invoices itself is a kind of contract and no further contract is required to ascertain that whether the sale is on FOR basis or not. Therefore, there is no dispute that sale is on FOR basis and hence credit is admissible. As regard the judgment cited by Learned Authorized Representative on ULTRATECH CEMENT LTD- 2018 (9) GSTL 337 (S.C.) & NCL INDUSTRIES LTD.- 2020-TIOL-1149-CESTAT-Hyderabad. I find that this tribunal in the case of ULTRATECH CEMENT LTD- 2007 (6) S.T.R. 364 (Tri.- Ahd.) & SANGHI INDUSTRIED LTD-2019 (369) ELT 1424(Tri-Ahmd). Carefully considering the judgment of Hon’ble Supreme Court allowed the credit holding that on the same type of transaction, the sale is on FOR basis. After the Supreme Court judgment in ULTRATECH CEMENT LTD. the board has also issued a Circular No. 97/8/2007-ST. The decision of this tribunal in the case of ULTRATECH CEMENT LTD & SANGHI INDUSTRIED LTD. has been upheld by the Hon’ble Gujarat High Court.
4.1 In this position of law, I find that as regard Hyderabad bench judgment in the case of NCL Industries firstly, it has not considered theboards circular issued subsequent to the Hon’ble Supreme Court in ULTRATECH CEMENT LTD. secondly, this tribunal is bound by the jurisdictional High Court judgment i.e. in the case of ULTRATECH CEMENT LTD AND SANGHI INDUSTRIES LTD. passed by the Hon’ble Gujarat High Court. Therefore, the judgment cited by Shri. Sanjiv Kinker, Learned superintendent (AR) appearing on behalf the revenue are clearly distinguished.
The Tribunal allowed the appeal holding that the present case involved the same facts.[Banco Products Ltd. v. C.C.E. & S.T., 2021 SCC OnLine CESTAT 316, decided on 30-06-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
