TaxTMI 
TaxTMI 
2014 (7) TMI 1013
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the factory gate. The point of dispute is as to whether in respect of clearances from the factory gate directly to the customers the appellant would be eligible for cenvat credit in respect of GTA services availed for transportation of cement upto the customer's premises. According to the appellant, such sales directly from the factory to the customers are on FOR destination basis and, therefore, in terms of the Board's Circular No. 97/8/2007-S.T., dated 23-8-2007, it is the customer's premises which have to be treated as the 'place of removal' and hence, they would be eligible for Cenvat credit of service tax paid on GTA service availed for transportation upto the customers' premises. The Department was of the view that the appellant's sa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s the risk of loss of or damage to the goods during transit and the freight charges are integral part of the price of the goods, it is the buyer's premises, which is to be treated as the place of removal, that since in this case the above condition for treating the sales as or FOR destination, sales are satisfied, the 'place of removal' is the buyer's premises and since during the period of dispute, the definition of 'Input service' included the transportation of the goods upto the place of removal, the appellant would be eligible for Cenvat Credit of service tax paid on the GTA service availed, that in terms of Board's Circular No. 137/3/2006-CX., dated 2-2-2006 when the 'place of removal' of the goods is other than the factory gate, the C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....estion, was chargeable to duty at a specific rate and therefore, the provisions of Section 4 of the Act are not applicable, and hence, the definition of 'place of removal' as given in Section 4 would not be applicable, as the definition of 'place of removal in Section 4 is only for the purpose of this Section, which is applicable when the goods are chargeable to duty at an ad valorem rate and the provisions of Section 4A or Section 3(2) of the Act are not applicable, that since in this case, the cement is chargeable to duty at specific rate, the 'place of removal' would be the factory gate i.e. the place on removal from which, the duty is required to be paid; that the same view has been taken by the Tribunal in the case of Lafarge India Ltd....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons of Section 4 are inapplicable. 7. We, for the reason given below, are of the prima facie view that the definition of 'place of removal' in Section 4 of the Central Excise Act, 1944 can be adopted for the purpose of Cenvat Credit Rules, 2004 only in those cases where the final product is chargeable to duty at an ad valorem rate on the value determined under Section 4 i.e. when the provisions of Section 4 are applicable for determining the duty leviable on the goods and the definition of 'place of removal' in Section 4 would not be applicable for the purpose of Cenvat Credit Rules, 2004 when the final product is chargeable to duty at a specific rate or of at ad valorem rate, on the value determined under Section 4A or on tariff valu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ere the goods are sold after their clearance from the factory" within the scope of the term 'place of removal' was to enable the Government to charge duty on the sale price of the goods at the Depots, Consignment agent's premises etc. when the goods after clearance from the factory are sold from these places. It is well settled law that a legal fiction cannot be extended beyond the purpose for which it has been created. Therefore, applying the definition of 'place of removal' as defined in Section 4(3)(c) to the Cenvat Credit Rules, 2004, even in these cases where the duty on the final product is chargeable at specific rate or on value determined under Section 4A or tariff value fixed under Section 3(2), does not appear to be correct. The B....