TaxTMI 
TaxTMI 
2019 (2) TMI 1487
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....gency for transportation of cement. The appellant were issued show cause notice for the period 2009-10 to 2013-14 proposing to deny cenvat credit availed on service tax paid on outward transportation. The demand was confirmed by the adjudicating authority holding that the credit of GTA service is available on input service only up to place of removal after 01.04.2008 in terms of Rule 2 (I) of Cenvat Credit Rules, 2004. He held that in terms of Section 4 (3) (c) of the Central Excise Act. 'place of removal' means factory or any other place or premises of production or manufacture of the excisable goods; warehouse or any other place or premises wherein the excisable goods have been permitted to be stored without payment of duty; depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory; from where such goods are removed". That as per Board's circular Nos. 37B order No. 59/1/2003 dt. 03.03.2003 and no. 97/8/2007 dt. 23.08.2007 stated that the place where the sale takes place, is the place of removal. Further CBEC vide Circular No. 988/12/2014 -CX dt. 20.10.2014 has stated that the place wh....
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....e adjudicating authority is wrong. He also invited our attention to the copies of gate passes cum excise invoices in case of the Appellant on which clearances were made to depots/ stockists as well as institutional consumers. He also invites our attention to certificate issued by the Chartered/ Cost Accountant certifying that the goods were cleared on FOR basis by the Appellant and the freight charges are part of assessable value. He also relies upon the Board Circular No. 1065/4/2018- CX dt. 08.06.2018 wherein the CBEC has viewed that the "place of removal" is required to be determined with reference to "point of sale". That in the present case since the liability of freight and damages to goods uptill doorstep of buyers is of Appellants, the point of sale is that where the ownership of the goods changed hands i.e doorstep of buyers. He alternatively submits that the Cenvat Credit availed by the appellant on the outward transport charges cannot be recovered as the appellants have already discharged higher duty amount on the said services. Since, the service charges was included in the assessable value of the final product cleared on payment of duty. He submits that if the Revenue ....
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.... • 2010 (19) STR 340 (Tri. Del.) L G Electronics (India) P. Ltd. • 2018 (5) TMI 1454-CESTAT Mumbai • JSW Steel Ltd. 2018 (4) TMI 660 CESTAT Mumbai 3. Per Contra Shri Jeetesh Nagori Ld. Addl. Commissioner (AR) appearing on behalf of the revenue submits that the Hon'ble Apex Court in the case of CCE Vs. Ultratech Cement Ltd. 2018 (9) GSTL 337 (SC) has held that the cenvat credit on GTA Service availed for transport from place of removal to buyers premises is not admissible. He also reiterates the findings of the adjudicating authority. Shri Nagori, Ld. AR also relied upon various following judgments: • 2018 (9) GSTL 337 (SC) CCE vs Ultratech Cement Ltd. • 2018 (13) GSTL J101 (SC) Ultratech Cement Ltd. vs Commr. • 2018 TIOL 2226 CESTAT Del- Pee Cee Cosma Sope Ltd. • 2018 TIOL 2810 CESTAT MAD- HCL Infosystems Ltd. • 2018 TIOL 2943-CESTAT HYD-Cement Division Unit of Kesoram Industries Ltd. • 2018 TIOL 1878 CESTAT MUM- Ved PMC Ltd. • 2017 TIOL 3966 CESTAT DEL - Aksh Optifibre Ltd. • 2017 TIOL 4358 CESTAT DEL- Lally Automobiles P. Ltd. â....
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....will thus be seen where the price at which goods are ordinarily sold by the assessee is different for different places of removal, then each such price shall be deemed to be normal value thereof. Sub-clause (b) (iii) is very important and makes it clear that a depot, the premises of a consignment agent, or any other place or premises from where the excisable goods are to be sold after their clearance from the factory are all places of removal. What is important to note is that each of the premises is referable only the manufacturer and not to the buyer of excisable goods. The depot or the premises of the consignment agent of the manufacturer are obviously places which are referable to the manufacturer. Even the expression "any other place of premises" refers only to a manufacturer's place or premises because such place or premises is to be stated to be where excisable goods "are to be sold". These are key words of the sub-section. The place or premises from where excisable goods are to be sold can only be manufacturer's premises or premises referable to the manufacturer. If we were to accept contention of the revenue, then these words will have to be substituted by the words "have ....
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....which would be included while ascertaining the valuation of the goods manufactured by the buyer. That is the plain meaning which has to be assigned to Section 4 read with Valuation Rules. 13. In the present case, we find that most of the orders placed with the respondent assessee were by the various Government authorities. One such order, i.e., order dated 24-6-1996 placed by Kerala Water Authority is on record. On going through the terms and conditions of the said order, it becomes clear that the goods were to be delivered at the place of the buyer and it is only at that place where the acceptance of supplies was to be effected. Price of the goods was inclusive of cost of material, Central Excise duty, loading, transportation, transit risk and unloading charges, etc. Even transit damage/breakage on the assessee account which would clearly imply that till the goods reach the destination, ownership in the goods remain with the supplier namely the assessee. As per the 'terms of payment' clause contained in the procurement order, 100% payment for the supplies was to be made by the purchaser after the receipt and verification of material. Thus, there was no money given earlier by th....
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..... As regards other judgments cited by rivals, though we have considered the same, but since, we have discussed above the most relevant apex court judgments, we need not to discuss each and every judgment. 7. As regard the issue raised by the appellant that the excise duty paid on the element of freight being more than the element of cenvat credit on the outward GTA, therefore, there should not be any demand. We find force in the argument of the appellant however, since we are deciding the issue on merit, the admissibility of the Cenvat Credit on outward GTA on the basis of provision under Cenvat Credit Rules itself, we need not to deal this aspect hence, the issue related to this fact left open. As regard the submission made by Ld. Counsel that they have been operating as per the guideline given in the Circular dated 22.12.2014 and 23.08.2007 which was operative at the relevant time, therefore, even though the same were withdrawn w.e.f. 08.06.2018, but at the relevant time the benefit of said Circular shall be available. We find force in the argument of the Ld. Counsel as the law on this issue has been settled time and again by the Hon'ble Supreme Court as per the judgment cited....