TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 497
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.... Aggrieved by the aforesaid order, the petitioner preferred further appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT), Chennai in Excise Appeal Nos.40626 and 40627 of 2019. 4. By an order dated 21.02.2020 bearing Final Order Nos.40500-40501 of 2020, the Tribunal allowed the appeal by way of remand with the following observations:- "5. Ld. Counsel has produced before me sample invoice/purchase orders to contend that they have paid Central Excise duty after including freight charges; that it is also argued by her that since the goods have been delivered at the buyer's premises without collecting freight charges from the customer and the same is borne by the appellant, they are eligible for credit of service tax paid on the freight charges upto the buyer's premises. I find that to peruse the documents relating to the issue under consideration it is best to remit the case back to the adjudicating authority who shall look into the documents furnished by the appellant to determine the place of removal. If the appellant has included the freight charges in the transaction value while discharging the excise duty, they would be eligible for the credit of....
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....of removal, but excludes services.- 20. I find that the issue of eligibility to credit in respect of the service tax paid on outward freight incurred for transportation of the goods from the factory to the places of customers for the period from 01.04.2008 onwards stands decided by the latest judgment dated 01.02.2008 of the Hon'ble Supreme Court in the case of M/s.Ultratech Cement Ltd. has given a conclusive finding to the effect that the credit of service tax paid on outward freight incurred for transportation of goods from the factory to the customers premises is not admissible as cenvat credit. The issue involved in this case is identical to the issue invoiced in the case of M/s.Ultratech Cement Ltd judgement dated 01.02.2008 of the Hon'ble Supreme Court. Going by the Central Excise Act/ Rules and Principles of Judicial Discipline, I hold that Service tax paid on the outward transportation of the final products from the factory gate/depots of the noticee to the premises of the customers is not admissible as cenvat credit under Rule 3(1) read with Rule 2(1) of the Cenvat Credit Rules, 2004. I find that the assessee had taken cenvat credit of service tax paid on outward....
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....t Section 11AA of the Central Excise Act, 1944 from M/s Hi-Tech Arai Pvt. Ltd. (Unit-V), Kuthoor, Trichy." 6. The learned counsel for the petitioner would draw attention to the decision of the Himachal Pradesh High Court in M/S. Inox Products Pvt. Ltd., Vs. The Assistant Commissioner Central Excise and Service Tax Division reported in 2024 (4) TMI 32. Specifically, a reference was made to paras 26 to 38 of the said order, which reads as under:- "26. It is not in dispute that for a manufacturer/consignor, the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the "place of removal" as per the definition contained of the said term in the Central Excise Act,1944. Such place of removal is the place where the sales take place. 27. It is also not in dispute that in an F.O.R sale which the appellant was doing in the instant case, freight charges form part of assessable value, the ownership of goods remains with seller till delivery at customer's doorstep, seller bears risk of loss or damage to the goods during transit to the destination, and property in the goods is not transferred till delivery. So outward tr....
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....he buyer. From the aforesaid, it would be manifest that the sale of goods did not take place at the factory gate of the assessee but at the place of the buyer on the delivery of the goods in question. 15. The clear intent of the aforesaid purchase order was to transfer the property in goods to the buyer at the premises of the buyer when the goods are delivered and by virtue of Section 19 of the Sale of Goods Act, the property in goods was transferred at that time only. Section 19 reads as under: "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 circumstances of the case. (3) Unless a different intention appears, the rules contained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer." 30. This was reiterated in Emco case (2 supra). 31. T....
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....uring activity. 37) Reliance was also placed by the Tribunal on its Larger Bench decision in M/s Ramco Cements Limited vs. Commissioner of Central Excise, Puducherry, 8 dt. 21.12.2023, wherein the Larger Bench had held that the credit availed on outward transportation services is eligible when the freight charges are included in the taxable value. 38) Therefore, we hold on issues mentioned above that the Tribunal was not justified in holding that place of removal for the GTA Services provided under FOR sale contract is the manufacturer's premises and not the place where the goods are sold; that the Tribunal was not justified in holding that the GTA services in the present case are being received beyond the place of removal and therefore not covered within the definition of Input Service under Rule 2(1) of CANVET Credit Rules, 2004." 7. The learned Senior Standing Counsel for the respondent on the other hand would submit that the remedy under Article 226 of the Constitution of India is not available to the petitioner, as the petitioner has an alternate remedy before the Appellate Commissioner. 8. I have considered the arguments advanced by the learned counsel for the petitione....