TaxTMI 
TaxTMI 
2024 (10) TMI 378
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....Tax paid on outward transportation charges from place of removal during the period from April 2008 to June 2017 from M/s Spack Automotives Pvt. Ltd., under Section 11A of the Central Excise Act, 1944 read with Rule 14 of the CENVAT Credit Rules, 2004. (ii) The demand of Rs. 9,69,267/- (Rupees Nine Lakhs Sixty nine Thousand Two hundred sixty seven) is dropped on account of CENVAT credit availed of Service Tax paid on outward transportation charges upto the place of removal during the period from October 2006 to March 2008 from M/s Spack Automotives Pvt. Ltd as it is not legally sustainable and dropped in view of various judgments pronounced by the Supreme Court of India on the above issue. HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) (iii) I order the charging and recovery of appropriate interest under Section 11AB/AA of the Central Excise Act, 1944 read with Rule 14 of the CENVAT Credit Rules. 2004 from M/s Spack Automotives Pvt Ltd on the above amount of confirmed demand (iv) I impose penalty of Rs. 30,40,900/- (Rupees Thirty Lakhs Forty Thousand Nine Hundred) upon M/s Spack Automotives Pvt. Ltd under Section 11AC of the Central Excise Act,. 1944 re....
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....pellant and Shri Manish Raj Authorized Representative for the revenue. 3.2 Arguing for the appellant learned counsel submits: • The demand of Rs 21,58,582/- relates to credit in relation to export of goods in the nature of CHA, Agency charges, documentation charges, air freight and alike charges • The demand also related to export of goods in which place of removal was port, and Credit upto the port of export is admissible under law • The demand of Rs 1,30,730/- was barred by limitation. The appellant did not suppress which they had duty to disclose • As per evidence available the contracts were on FOR destination basis and the risk in property and the property belonged to the appellant till the point the goods were delivered to buyer at the buyer's destination. There are plethora of cases decisions and the appellant would adduce these relied upon at the time of personal hearing. • Imposition of interest and imposition of penalty are bad in law 3.3 Learned authorized representative reiterated the findings recorded in the impugned order. 4.1 I have considered the impugned order along with the submissions m....
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....nciple of jurisprudence calls for judiciousness in exercising vested powers so I proceed to decide on the merits of the case 13. I find that the crucial requirement for availing CENVAT credit is that the inputs/input services on which the credit is sought to be availed should be received by the manufacturer of final product or by the provider of output services and should be used in or in relation to the manufacture of final products or for providing output service 14. Further, Rule 9(5) of the CENVAT credit Rules 2004 provides that "The manufacturer of final products or the provider of output service shall maintain proper records for the receipt, disposal, consumption and inventory of the input and capital goods in which the relevant information regarding the value, duty paid, CENVAT credit taken and utilized, the person from whom the input or capital goods have been procured is recorded and the burden of proof regarding the admissibility of the CENVAT credit shall lie upon the manufacturer or provider of output service taking such credit" 15. Thus, the Rule clearly provides that the burden to prove regarding the admissibility of the CENVAT credit is upo....
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....med 5 2011-12 109363 111385 571557 792305 Confirmed 6 2012-13 120948 35801 93125 249874 Confirmed 7 2013-14 36983 0 0 36983 Confirmed 8 2014-15 27815 0 0 27815 Confirmed 9 2015-16 44644 0 0 44644 Confirmed 10 2016-17 16810 0 0 16810 Confirmed 11 Apr-June 17 8848 0 0 8848 Confirmed Total 508708 373648 2158582 3040938 4.4 From the table as above submitted by the appellant it is evident that the appellant disputed the very fact that the demand made from him was in respect of Cenvat Credit availed by him against the services of BAS, Inland haulage, CHA & documentation charges for export of goods by treating them under the category of GTA Services. He made specific submission to this effect before the Commissioner (Appeal) who has summarily dismissed the said contention by making observations in para 10 of the impugned order. It is the contention of the appellant that when they were asked data for the period from October 2006 to January 2011, inadvertently they provided the data in respect of GTA services....
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....'place of removal' is required to be determined with reference to 'point of sale' with the condition that place of removal (premises) is to be referred with reference to the premises of the manufacturer. The observation of Honb'le Courtin para 16 in this regard is significant as reproduced below "16. It 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....
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....ed for further guidance in individual cases based on facts and circumstances of each of the case. Past cases should accordingly be decided. 7. No extended period: Any new show cause notice issued on the basis of this circular should not invoke extended period of limitation in cases where an alternate interpretation was taken by the assessee before the date of the Supreme Court judgment as the issue is in the nature of interpretation of law." 4.6 In respect of the export goods Board has vide Circular No 999/6/2015-CX dated 28.02.2015 clarified as follows: Attention is invited to Circular No. 988/12/2014-CX dated 20.10.2014 issued from F. No. 267/49/2013-CX.8 on the above subject wherein it was clarified that the place of removal needs to be ascertained in terms of provisions of Central Excise Act, 1944 read with provisions of the Sale of Goods Act, 1930 and that payment of transport, payment of insurance etc are not the relevant considerations to ascertain the place of removal. The place where sale takes place or when the property in goods passes from the seller to the buyer is the relevant consideration to determine the place of removal. 2. In this reg....
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....s to the foreign buyer with the exporter having no control over the goods. In such a situation, transfer of property can be said to have taken place at the port where the shipping bill is filed by the manufacturer exporter and place of removal would be this Port/ICD/CFS. Needless to say, eligibility to CENVAT Credit shall be determined accordingly. 7. In the case of export through merchant exporters, however, two transactions are involved. First is the transaction between the manufacturer and the merchant exporter. The second transaction is that between the merchant exporter and the foreign buyer. As far as Central Excise provisions are concerned, the place of removal shall be the place where the property in the goods passes from the manufacturer to the merchant exporter. As explained in paragraph 4 supra, in most of the cases, this place would be the factory gate since it is here that the goods are unconditionally appropriated to the contract in cases where the goods are sealed in the factory, either by the Central Excise officer or by way of self-sealing with the manufacturer of export goods taking the responsibility of sealing and certification, in terms of notification....