TaxTMI 
TaxTMI 
2021 (8) TMI 1116
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.... Accordingly, vide Show Cause Notice dated 16.7.2018, CENVAT Credit of the aforesaid amount was proposed to be disallowed and recovered from the appellant along with interest, imposition of penalty was also proposed. The proposal was initially confirmed vide Order-in-Original No. 01/2019 dated 23.01.2019. The appeal thereof has been rejected vide the order being assailed. Being aggrieved, the appellant is before this Tribunal. 3. I have heard Shri Anand Bhattacharya, learned Counsel for the appellant and Shri P Juneja, learned Authorised Representative for the department. 4. It is submitted on behalf of the appellant that appellant was selling the goods on FOB basis to the location of the buyer. The purchase order is received by the appellant from the buyer is impressed upon, according to which the final product of the appellant was subject to inspection at the buyers place and cost was to be paid thereafter only. The rates are on FOB delivery basis to be delivered at buyers plant. It is impressed upon that the transit risk and insurance were also to be borne by the appellant. Buyer had the right to reject and return the damaged goods and payment as per the purchase order was....
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....place or premises which apparently is not the fact in the preset case as the goods have been cleared by the appellant from the factory gate itself. GTA services being obtained from factory gate is, therefore, not a valid input in terms of definition of input in Rule 2(l) (i) of CENVAT Credit Rules, 2004 as stand amended from 01.03.2008. The plea of limitation has also been specifically dealt with in paragraph 13 of the said judgement. It is impressed upon that there is no infirmity in the order under challenge. The latest decision on the issue is that of CCE & ST vs Ultratech Cement Ltd. reported in [2018 (9) GSTL 337 (SC)]. The appeal is accordingly prayed to be dismissed. 7. After hearing the both the parties and perusing the entire record of this appeal including the purchase orders received by the appellant, I observe and hold as follows: The appellant was clearing goods after receiving purchase orders from the customers specifically stating the sales to be made on FOR destination basis with a contract therein for the same. The terms and conditions of sale appear to be as follows: a) That the appellant has engaged the services of various transporters. The goods manufac....
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.... indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal; Therefore, any service which satisfies the conditions mentioned in the definition qua the manufacturer, would be termed as "input service" for the said manufacturer, and credit would be available in respect of the tax paid on such services by the person liable for payment of service tax. 9. That in order to further analyse the legal position, it would be necessary to examine the definition of the expression "place of removal", which, though not defined in the CENVAT Cred....
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.... (3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell. (4) An agreement to, sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. " A perusal of the above definitions would further make it clear, that as far as interpretation under the Central Excise laws is concerned, as per the above provisions, "transfer of possession with title of goods by one person to another" is the crux of the sale transaction. Therefore, until and unless the goods are delivered to the buyer, and the possession with title of goods is transferred unto the buyer, the sale does not take place and it cannot be said that goods have been sold. Though it may not always be the physical delivery and physical possession. 11. In the instant case, as the facts indicated above would show, present is the case of F.O.R. destination sales. It therefo....
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....the factory also become place of removal. In view of this clause the place of buyer becomes the place of removal in case of FOB destination Sale case. Since the title is with the seller till goods reach the buyer's place, the GTA service recipient shall be the seller and not the buyer as contrary to contracts on FOB origin basis / CIF basis where property gets delivered to buyer even before the physical delivery thereof and the buyer becomes the recipient of the said service. In such circumstances, the place of buyer is definitely is any other place where the excisable goods are sold after their clearance from the factory. Thus, in the present case the outward freight is held to be eligible input for availing the credit in terms of Rule 3 of CENVAT Credit Rules. Otherwise also the decision of Apex Court in the case of Commissioner of Customs and Central Excise Aurangabad vs. Roofit Industries Ltd. (supra) as relied upon, is applicable to the facts of the present case. Otherwise during the impugned period, the decision of Ultratech Cement (supra)was not in existence. Even the facts of the present case are different from the facts of the Ultratech Cement(supra). 14. The circular d....