- (1.) The Court: The subject matter of challenge in this appeal is a judgment and order dated 18th September, 2012 passed by the Customs, Excise and Services Tax (Appellate) Tribunal, Kolkata by which the learned Tribunal dismissed the appeal preferred by the Revenue following the judgment in the case of CCE&ST v. ABB Ltd, 2011 32 STT 14112 taxmann 57 (Kar.) holding that service tax paid by the manufacturer for outward transportation of the goods upto the point of delivery to the customer is claimable as an input service under the Cenvat Rules. Challenging the aforesaid order, the Revenue has come up in appeal.
(2.) Mr. Saraf, learned advocate appearing for the appellant, submitted that the judgment in the case of ABB Ltd. rendered by the Karnataka High Court is open to questions and, therefore, the Tribunal should not have followed the judgment. The Tribunal should have instead considered the submissions advanced on behalf of the Revenue and decided the matter independently which the Tribunal did not do.
(3.) Mr. Majumder, learned advocate, appearing for the respondent-assessee, drew our attention to the judgment in the case of ABB Ltd. . He relied upon the following lines appearing in paragraph 29 of the report, which reads as follows: 29. Input service per se is not confined to pre-manufacturing stage. It also refers to post manufacturing stage. As is clear from the Circular issued by the Board on 23-8-2007, where a manufacture/consignor may claim that the sale has taken place at the destination point because in terms of sale contract/agreement (i) the ownership of goods and the property in the goods remained with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant, of such credit, that the sale and the transfer of property in goods (in terms of the definition as under section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the said place. Therefore, if the service tax is paid on transportation charges, in such cases, it fell within the phrase "clearance of final products from the place of removal" and therefore, the assessee was entitled to CENVAT credit.;