INDIA CEMENTS LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) HEARD both sides. All these appeals were listed together for hearing on the ground that these cases involve a common issue. The learned advocates/consultants/authorized representatives appearing in respect of different appeals as indicated above contend that the issue involved in these appeals is decided in favour of the appellants by the decision of the Larger Bench of the Tribunal in the case of ABB Ltd. v. Commissioner of Central Excise & Service Tax, Bangalore : 2009 (15) S.T.R. 23 (Tri. -LB) and, therefore, it is their common prayer that all these appeals should be allowed following the ratio of the said Larger Bench decision. These appeals involve a total amount of Rs. 27 crores (approx.) including the penalty amount.

(2.) AT the outset, we notice that the Larger Bench decision in ABB Ltd. (supra) does not record either the facts of the case or submissions made on behalf of the appellants. On a query from the Bench, the learned advocates/consultants/authorised representatives, made submissions regarding factual aspects of the cases represented by them. Some of them did not have copies of the invoices under which the impugned goods were sold by the appellants. Invoices shown by some of them indicated a consolidated amount charged from their customers without giving breakups. In some cases, the excise duty amount was shown separately. In some cases, the excise duty was shown to have been paid on the value of the impugned goods inclusive of the freight amounts. Some of the appellants are cement manufacturers, it was represented on their behalf that cement attracts specific rate of duty though some special cements attract ad valorem duty. It was also submitted that for cement, the freight represents a higher proportion of 8 - 9% of the value. It was submitted, on behalf of most of the appellants, that service tax paid on 'outward transport' is not claimed from the customers. However, this submission requires verification by the field officials and, in many cases, the amounts collected from the customers being a consolidated amount, it may not be possible to verify how much towards freight and service tax on freight is being collected from the customers as a part of the consolidated price. Only in one case, the authorized representative was able to show a sample invoice and correlate the same with the freight bill to show that what is being reimbursed by the customers is only the consolidated price and the exact freight amount and nothing separately is being recovered towards service tax on freight.

(3.) SHRI R. Parthasarathy, learned Consultant stated that in respect of his clients the benefit should be allowed even if the period after amendment of the relevant rule on 1 -4 -2008 in view of Paragraphs 24 and 25 of the Larger Bench order in ABB Ltd. (supra) which holds 'outward transport service' to be a business activity. According to him, the amendment made on 1 -4 -2008 would have no effect in limiting the credit in respect of outward transport from place of removal in the light of the said decision.