TaxTMI 
TaxTMI 
2024 (11) TMI 719
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....t The Commissioner, Central Goods and Service Tax vs. Ultratech Cement Ltd 2020-TIOL-1638-HC-AHM-CX. He prays that this appeal may also be disposed of in the light of the judgment in the case of Ultratech Cement Ltd (supra). 3. Shri Mihir G Rayka, Learned Additional Commissioner (AR) appearing on behalf of the revenue, reiterates the findings of the impugned order. 4. We have carefully considered the submission made by both the sides and perused the records. We find that it is admitted fact even by the adjudicating authority in the impugned order that the sale of excisable goods is on FOR basis and in respect of supply of such excisable goods the appellant have availed the service of transportation on which the appellant have paid the service tax which has been availed as Cenvat Credit. We find that on the identical facts, this Tribunal has decided the matter in favour of the assessee in the case of Ultra Tech Cement Ltd 2019-TIOL-1420- CESTAT-AHM. In the said judgment, in the case of sale of goods on FOR basis,whenthe freight is integral part of the assessable value on which excise duty was paid, it was held that in this condition the assessee is eligible for the Cenvat Credit o....
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....ing their goods on MRP basis in case of clearance from their depot/ stockists or to their customers and in case of sale to institutional consumers the goods are being cleared by them by adopting the valuation of the goods in terms of Section 4. The Appellants have annexed copies of excise invoice cum gate pass which shows that the prices are inclusive of freight and insurance and nothing extra has been charged. The goods are being cleared on FOR basis and all liabilities in respect of transportation of goods or damage to goods were on account of Appellants. They were liable for safe delivery of goods upto their customers doorstep. In such case when the sale of the goods is completed at the doorstep of the Customer or depot/ stockist as the case may be the point of sale shall be such doorstep. We find that the Circular No. 1065/4/2018-CX dt. 08.06.2018 issued by the CBEC in this context clarifies as under : 3. General Principle: As regards determination of'place of removal', in general the principle laid by Hon„ble Supreme Court in the case of CCE vs Ispat Industries Ltd 2015 (324) ELT 670 (SC)=2015-TIOL-238-SC-CX may be applied. Apex Court, in this case has upheld the prin....
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.... We find that the Chartered/ Cost Accountant has certified that the goods were sold on FOR basis by the Appellant and the freight/ damages in transit was responsibility of Appellant till the goods reaches the doorstep of the Customers. Also we find that the consignment notes were raised upon the Appellant and they did not charge any amount except price of the goods from the customers. Thus in the light of above Circular we find that as the ownership of the goods remained with the Appellants till the goods reached to the customer's doorstep and the freight charges as well as damage (insurance) to the goods till destination were borne by the Appellant, they are eligible for the credit of service tax paid by them on outward freight. In case of CCE & CU Vs. Rooflt Industries Ltd. 2015 (319) ELT 221 (SC)=2015-TIOL-87-SC-CX the Hon'ble Apex Court held as under : 12. The principle of law, thus, is crystal clear. It is to be seen as to whether as to at what point of time sale is effected namely whether it is on factory gate or at a later point of time, i.e. when the delivery òf the goods is effected to the buyer at his premises. This aspect is to be seen in the light of provision....
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....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.' 15. These are clear finding of facts on the aforesaid lines recorded by the Adjudicating Authority. However, the CESTAT did not take into consideration all these aspects and allowed the appeal of the assessee by merely referring to the judgment in the case of Escorts JCB Ltd. Obviously the exact principle laid down in the judgment has not been appreciated by the CESTAT. 16. As a result, order of the CESTAT is set aside and present appeal is allowed restoring the order passed by the Adjudicating Authority. From the above judgment it is clear that till the goods are handed over to the buyer, the cost is borne by the assessee or in other words where the goods are cleared on FOR basis the f....
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....time bar also. 8. In view of our above findings we hold that the Appellants are eligible for the cenvat credit of service tax paid on outward freight. We therefore, set aside the impugned order and allow the appeal with consequential reliefs, if any. MA (ORS) also stand disposed of.' 7. In view of the aforesaid findings of facts given by the Tribunal relying upon the Board Circular No.1065/2018-CX dated 8th June 2018 as well as the decision of the Supreme Court in the case of Ultratech Cement Ltd vs. Commissioner reported in 2015(37) STR 364(T)=2014-TIOL-1934-CESTATDEL and in the case of Commissioner of Cus. & C. Ex. Aurangabad vs. Roofit Industries reported in 2015(319) ELT 221(SC)=2015-TIOL-87-SC-CX, no question of law much less of any substantial question of law arises out of the impugned order passed by the Tribunal. The appeals, therefore, stand dismissed. No order as to costs.' Recently, on the identical issue and under the same set of facts, the Hon'ble Kerala High Court in the case of Transformers and Electricals Kerala Ltd vs. Commissioner of Central Tax and Central Excise Kochi/ Bangalore also taken the same view which is reproduced below: '4. We have heard S....