TaxTMI 
TaxTMI 
2016 (4) TMI 189
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....40886/2014, E/41089/2014, E/41090/2014, E/41091/2014, E/42197/2014, E/42250/2014, E/41234/2015, E/41235/2015, ST/42556/2013, ST/42557/2013, ST/42558/2013 & ST/40900/2014 For the Petitioner : Shri Raghavan Ramabhadran, Adv., Ms. D. Naveena, Adv. , Ms. Minchu Mariam Punoose, Adv., Shri N. Viswanathan, Adv., Shri M. Kannan, Adv., Shri S.R. Sankareshwaran, Adv., Ms. K. Ramya, Adv., Ms. Kamna Shrikanth, Adv., Shri S. Kannapan, Cons., Shri R. Parthasarathy, Cons., Shri K. Suresh Rao, Cons., Ms. R. Krithika, Adv. For the Respondent : Shri B. Balamurugan, AC (AR) ORDER Learned counsels appearing for the respective appellants agree that if following two questions are answered that shall serve the purpose of the present appeals on a common issue and all other issues may be left open for decision by the Adjudicating Authority in the respective appeals. On behalf of all the counsels, learned counsel Shri Raghavan Ramabhadran, Adv. and Shri N. Viswanathan, Adv., framed the following two questions for answer:- (i) Whether the goods cleared at the factory gate, depot or any other place of removal, (the expression of which is defined in Section 4(3) of the Central Excise Act, ....
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....it rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal; [Emphasis supplied] 2.3 Appellants pleaded that transportation service is taxed on reverse charge mechanism under the Finance Act, 1994. Accordingly service tax was payable by the recipient of transport service. In none of the cases in this batch of appeals, the service tax was discharged by the transporter in view of legal position that whoever receives transport services has to pay service tax. Accordingly, the assessees have suffered service tax and claimed Cenvat credit thereof. 2.4 Appellants explains that the concept of "upto place of removal" was substituted in Rule 2 (l)(ii) of Cenvat Credit Rules, 2004 in place of the term "from the place of removal" after 01.04.2008 and such term continues to be in statute book, which reads as under:- Rule 2(l) of Cenvat Credit Rules, 2004 (l) "input service" means any service,- (i) used by a provider of taxable service for providing an output service; or (ii) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of f....
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....redit or refund thereof to the assessees as the case may be. 4. Heard both sides and perused the records. 5. Before 11.07.2014, the meaning of the exprwessions "from the place of removal" and "upto the place of removal" were construed taking help the provision of Central Excise Act, 1944 read with the provision contained in Rule 2(l) of Cenvat Credit Rules, 2004. Thereafter with effect from 11.07.2014 such expression has been defined by the Rule 2(qa) of Cenvat Credit Rules, 2004. At all times, the whole question boils down to what is called "place of removal". That question can be answered with reference to Section 19 of Sale of Goods Act, 1930. For convenience of reading, the said section is reproduced as under:- Section 19 of Sale of Goods Act, 1930 - 19. Property passes when intended to pass.- (1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the c....
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....mphasis supplied] 8. It is further observed that Board Circular number 988/12/2014-Cx., dated 20.10.2014 has clarified the issue dealing with the judicial pronouncements as to the place of removal as under:. "(3) The operative part of the instruction in both the circulars give similar direction and are underlined. They commonly state that the place where sale takes place is the place of removal. The place where sale has taken place is the place where the transfer in property of goods takes place from the seller to the buyer. This can be decided as per the provisions of the Sale of Goods Act, 1930 as held by Hon'ble Tribunal in case of Associated Strips Ltd. v. Commissioner of Central Excise , New Delhi [2002 (143) E.L.T. 131 (Tri.-Del.)]. This principle was upheld by the Hon'ble Supreme Court in case of M/s. Escorts JCB Limited v. CCE, New Delhi [2002 (146) E.L.T. 31 (S.C.)]. [Emphasis supplied] 9. Added to the above, the Boards Circular No.97/8/2007-ST., dated 23.08.2007 has dealt the issue of 'place of removal' in para 8.2 reading as under:- "8.2 In this connection, the phrase 'place of removal' needs determination taking into account the facts of an indi....
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.... provisions under the Sale of Goods Act, 1930) occurred at the said place." [Emphasis supplied] 10. It may be seen that para 8.2 of the Circular No.97/8/2007-ST, dated 23.08.2007, para 3 of the Circular No.988/12/2004-Cx., dated 28.10.2014 and Circular No.999/6/2015, dated 28.02.2015 follow the concept that when property in goods is transferred under the Sale of Goods Act, 1930 as is envisaged by Section 19 thereof, at that point only, removal of the goods from the control of the seller is said to have occurred. Seller parts has right at that point to buyer at that time and detaches detaching himself from his right over the goods. His right accordingly extinguishes. The situations are:- (1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case. (3) Unless a different intention appears, the rules contained in sections 20 to 24 are rules for ....