TaxTMI 
TaxTMI 
2024 (10) TMI 378
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....e 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 read with Rule 15 of the CENVAT Credit Rules, 2004. The aforesaid amo....
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....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 made in appeal and during the course of arguments. 4.2 Impugned order records the findings as follows: "I find that the issue involved in the impugned order relates to the admissibility or otherwise of the CENV....
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....t 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 upon the service provider who takes the credit. In the present case, the onus of admissibility of CENVAT credit taken on the disputed services, is upon the appellant by virtue of Rule 9(5) ibid. 16. However, no material evidences have been placed on record by the appellant t....
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.... 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 including the credit taken by them against other services. Department issued the Show Cause Notice on the basis of this data for this period on the basis of the data provided by them inclusive of credit taken against services other than GTA services vide their letter dated 23.03.2011. The question whether this credit sought to be denied is in relation to services other than GTA services is a verifiable fact and....
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.... 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 been sold" which would then possibly have reference to buyer's premises. " 4. Exceptions: (i) The principle referred to in para 3 abov....
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....s 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 regard, a demand has been raised by the trade that it may be clarified that in the case of exports, for purposes of CENVAT credit of input services, the place of removal is the port or the airport from where the goods are finally exported. 3. The matter has been examined. It is seen that section 23 of the Sale of Goods Act, 1930 provides that where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the pur....