TaxTMI 
TaxTMI 
2023 (2) TMI 180
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....017 HYD-EXCUS-RRC- APP-001/18- 19(APP-I) Dated 18.05.2018 2. The facts in brief for the adjudication are as follows: That the appellants are engaged in manufacturing of cement. They are also registered under service tax in relation to taxable service i.e. transport of goods by road service. The appellants were clearing their cement in following two manners: (i) Clearances to their depots & consignment agents, from where the goods are sold. (ii) Clearances to industrial users and bulk consumers (i.e. other than the clearances made through their depots or consignment agents), which were delivered on 'Free on Road (FOR) basis'. The Department scrutinized the accounts of the appellant in respect of clearance of cement dispatched on 'Free on Road (FOR) basis' to their customers. Department formed an opinion that to arrive at the assessable value of the goods for calculation duty of excise it is required to determine "place of removal". The place of removal in turn is determined based on terms and conditions of contract of sale between the assessee and their customers and the manner of delivery of the goods. The customers, purcha....
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....Hyd-I, [2020 (7) TMI - CESTAT Hyderabad] iii) CCE Lucknow Vs M/s Shashi Cables Ltd., [2016 (12) TMI 1387 - CESTAT Allahabad] iv) M/s Aptar Beauty & Home India Pvt Ltd., Vs Commissioner of Central Tax, Medchal GST, [2020 (10) TMI 674 - CESTAT Hyderabad] v) CCE Allahabad Vs M/s Sarthek Enterprises Ltd., [2016 (8) TMI 443 - CESTAT Allahabad] vi) M/s Aditya Birla Chemicals India Ltd., Vs CCE & ST Ranchi, [2021 (1) TMI 709 - CESTAT Kolkata] Learned Counsel impressed that the Department was wrong in holding the buyers place to be the place of removal of the goods. The duty is wrongly alleged to be short paid. The confirmation of the demand is therefore liable to be set aside. Appeal accordingly is prayed to be allowed. Learned Counsel has relied upon the decision of Hon'ble Apex Court in the case of CCE, Nagpur Vs Ispat Industries reported as 2015 ( 324 ) ELT 670 (SC). Reliance has also been placed upon the decision of this Tribunal Hyderabad Bench itself in appellant's own case decided by Final Order No. A/30124-30127/2022 as was decided on 28.11.2022 titled as My Home Industries Pvt. Ltd. vs. Commissioner of Central Tax, Visakhap....
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....2022. There is sufficient acknowledgment to the said observation by the Department. 7. The Hon'ble Apex Court in Ispat Industries (supra) had examined the intention of legislature under Section 4 of Central Excise Act. It was observed that the Apex Court earlier while deciding the case of Union of India Vs Bombay Tyre International Ltd., (1984) 1 SCC 467 has held as follows: "Where the excisable article or an article of the like kind and quality is not sold in wholesale trade at the place of removal, that is, at the factory gate, but is sold in the wholesale trade at a place outside the factory gate, the value should be determined as the price at which the excisable article is sold in the wholesale trade at such place, after deducting there from the cost of transportation of the excisable article from the factory gate to such place. The claim to other deductions will be dealt with later. ........................................ ........................................ Where the sale in the course of wholesale trade is effected by the assessee through its sales organisation at a place or places outside the factory gate, the expenses incurred by....
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....n'ble Apex Court has held that the words used in the provision are "goods are to be sold". The contention of the Revenue would be correct if and only if the words in the provision would have been "goods have been sold". Resultantly, it was held in para 24 of the judgment that the place of removal refers only to the place from where goods are to be sold by the manufacturer and thus it has no reference to the place of delivery which may be either the buyers premises or the premises as the buyer may direct the manufacturer to send his goods. The earlier decision in the case of Escorts JCB Ltd., Vs CCE (2003) 1 SCC 281 was held to have similar facts as were there in the case of Ispat Industries Ltd. (supra). The Hon'ble Court also observed that in the case of Commissioner of Customs & Excise, Aurangabad Vs Roofit Industries Ltd., reported as 2015 (319) ELT 221 (S.C.) the Hon'ble Supreme Court had distinguished Escort's JCB's case (supra). But based on the facts of that case (Roofit's), it was held that the sale of goods in terms of Section 19 of sale of goods Act did not take place at the factory gate of assessee. The Court also observed that the Court's attention was not drawn to Sect....
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....hall be deemed to be the normal value thereof. Sub-clause (b)(iii) is very important and makes it clear that a E/30031 & 30032 & 30164/2019 & E/30214/2020 9 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 these premises is referable only to the manufacturer and not to the buyer of excisable goods. The depot, or the premises of a consignment agent of the manufacturer are obviously places which are referable only to the manufacturer. Even the expression "any other place or premises" refers only to a manufacturer's place or premises because such place or premises is stated to be where excisable goods "are to be sold". These are the key words of the subsection. The place or premises from where excisable goods are to be sold can only be the manufacturer's premises or premises referable to the manufacturer. If we are to accept the contention of the revenue, then these words will have to be substituted by the words "have been sold" which would then possibly have reference to the buyer's premises." 11. ....
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....l settled that the buyers' premises can never be the place of removal, therefore the freight from the factory/depot/consignment agent up to the buyers' premises cannot be included in the assessable value, even if the goods are sold or delivered at the buyer's premises. In view of the above, we find that the settled legal position is in favour of the appellants and against Revenue and the demands are unsustainable on merits and need to be set aside and we do so. Since we have taken a decision on the merits of the case, the issue of limitation becomes irrelevant." Further, a similar view was taken in M/s. Vijai Electricals Ltd., Vs. Commissionerate [2019 (11) TMI 301- CESTAT]." 10.1 This Tribunal has thereafter held as follows: "18. Having considered the rival contentions, we find that under the similar facts and circumstances, the Apex Court (in Ispat Industries) distinguishing its earlier ruling in the case of Roofit Industries, have held that the place of removal referred to in Section 4 r/w Rule 5 and Rule 7 of Central Excise Valuation Rules, clearly indicates, that the place of removal refers to only the sellers premises (factory gate, warehouse, depot, c....