TaxTMI 
TaxTMI 
2023 (10) TMI 1464
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....removal which is their factory premises in Noida, hence the CENVAT credit on the same has been wrongly availed. The issue to be decided before me is whether the shop at Kolkata is the place of removal for the appellant in respect of their goods. 5.2 The appeal for the earlier period covering April 201516 has already been decided vide OIA NOI-EXCUS-002APP-1420-17-18-1798 dated 21.11.2017. The present appeal is in sequel pertaining to period April 2016 to June 2017. 5.3 The determination of 'place of removal' for the purpose of Central Excise Act and rules made thereunder depends on case to case basis as each case has its own specific facts. In order to decide whether the direct shop in the instant case is place of removal or not, it is appropriate to refer to the definition of place of removal provided under Section 4 of the Central Excise Act, 1944. It states that. - "place of removal" means- (i) a factory or any other place or premises of production or manufacture of the excisable goods; (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty; ....
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....e as a corollary, it implies that such rent, repair and maintenance services cannot be said to have been used by them directly or indirectly in or in relation to clearance of goods upto place of removal, therefore CENVAT credit on the same is inadmissible." 2.1 Appellant is registered with Large Taxpayer Unit, NBCC Plaza, New Delhi vide Membership No.LTU/DEL/024 dated 22.03.2010. The appellant is engaged in manufacture of Motor Cycles/ Scooters and its parts falling under Chapter 87 of the First schedule to the Central Excise Tariff Act, 1985 and also availing the facility of Cenvat credit under Cenvat Credit Rules, 2004. 2.2 During the course of Audit conducted by auditors of C & AG included their audit objections in Performance Audit Report No.33 of 2014. In para 4.5.2 of the said report following has been observed:- "4.5.2 During the test check of credit records of M/s India Yamaha Motors Pvt. Ltd. in Noida Commissionerate, we observed that the assessee availed CENVAT Credit of Service Tax of Rs. 18.72 Lakh paid on the services of rent, repair and maintenance services for its unit at Kolkata, West Bengal during the year 2012-13. The rent, repair and maintenance se....
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....Metro Shoes Pvt. Ltd. Vs Commissioner of Central Excise 2008 (10) STR 382 (Tri-Mumbai), o Lumax Automotive System Ltd. Vs Commissioner of Central Excise, Delhi Faridabad 2013 (32) STR 526 (Tri.-Del.) * Expression storage up to the place of removal used in the definition of input service will cover storage at the place of removal, as has been held in following decisions:- o DSCL Sugar Vs Commissioner of Central Excise Lucknow 2013 (19) GSTR 588 (Tri.-Delhi), 2014 (34) STR 58 (Tri.-Del.), 2012 (37) STT 549. * Definition of input services under Rule 2(l) of Cenvat Credit Rules, 2004 allowed Cenvat credit for services utilized in relation to clearance of final product from the place of removal and storage up to the place of removal, in the present case actual place of removal is direct shop at Kolkata. In case of Metro Shoes Pvt. Ltd. Vs Commissioner of Central Excise 2008 (10) STR 382 (Tri.-Mumbai), they are allowed in similar situation. * Cost of rent, repairing and maintenance of the direct shop is included in assessable value of motorcycles manufactured by the appellant. As per CBEC's Order No.59/1/2003-CX dated 03 March, 2003 clarified ....
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....uation Rules, 2000 also provides as follows:- "RULE 7. Where the excisable goods are not sold by the assessee at the time and place of removal but are transferred to a depot, premises of a consignment agent or any other place or premises (hereinafter referred to as "such other place") from where the excisable goods are to be sold after their clearance from the place of removal and where the assessee and the buyer of the said goods are not related and the price is the sole consideration for the sale, the value shall be the normal transaction value of such goods sold from such other place at or about the same time and, where such goods are not sold at or about the same time, at the time nearest to the time of removal of goods under assessment." Clarifying the position in respect of the goods sold from places other than the factory gate, CBEC Central Excise Manual Chapter 3 Part III para 3.2 clarifies as follows: "If the goods are not sold at the factory gate or at the warehouse but they are transferred by the assessee to his depots or consignment agents or any other place for sale, the assessable value in such case for the goods cleared from factory/warehouse sha....
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....wing an inference that the ownership in the property continued to be retained by the assessee till it was delivered to the buyer for the reason that the assessee had arranged for the transport and transit insurance. Such a conclusion is not sustainable". In this judgement Hon'ble Supreme Court also quoted section 39 of 'Sales of Goods Act, 1930' and held that the machinery, handed over to the carrier/transporter is as good as delivery to the buyer in term of section 39 of the Sales of Goods Act, apart from terms and conditions of sale . 5. Similarly in Civil Appeal No.4808-4809 of 2000 with C.A.No.1858-1859 of 2001, 7898 of 2001 and 4221 of 2002 against the order of Tribunal in case of Prabhat Zarda Factory Limited Vs. Commissioner of Central Excise reported vide 2000(119)ELT191(T-LB), the Hon'ble Supreme Court have in their order reported vide 2002(146)ELT497(SC) held, on 14.11.2002, that : "In these matters, the question is whether freight and insurance charges are to be included in the assessable value for the purposes of excise. This question is covered by the judgment of this Court in the case of Escort JCB Ltd. vs. Commissioner of Ce....
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....ever name it is called. 4.8 Rule 2 (l) as noted above provides that the input service is the services used directly or in-directly, in or in relation to manufacture and clearance of the finished products up to the place of removal. Undisputedly, the place of removal in the present case is the direct shop in Kolkata and the claim of appellant that the duty is paid on the value determined on the basis of sale value from the direct shop is not disputed in the impugned order. While recording the submissions in the order in original, appellant submission to effect "v. The assessee has been discharging the Excise Duty on the bikes sold from direct shop at Kolkata at a value at which bikes are sold from Kolkata direct shop and not at any notional value at the time of dispatch of bikes from the factory gate." However adjudicating authority has not given any finding on this submission. 4.9 Interestingly, Commissioner (Appeals) says in his order that adjudicating authority in his earlier order states that direct shop at Kolkata belongs to M/s Frostees Export India Pvt. Ltd. and for that reason it cannot be place of removal while doing so Commissioner (Appeals) has failed to examine the....
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....as been clarified by the circular No 1065/4/2018 dated 8th June 2018: "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) ELT670 (SC) may be applied. Apex Court, in this case has upheld the principle laid down in M/s Escorts JCB (Supra)to the extent that '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 Hon'ble Court in 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 priceshall 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 p....
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....t or sales promotion, market research, storage up to the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation up to the place of removal;" It can be seen from the above reproduced portion that the input services definition is having three different parts. Presumably, the first part i.e. "used by provider of taxable service for providing an output service" is not an issue in this case. The second part of the definition "used by the manufacturer ...from place of removal" is being strongly contested by both sides. On a plain reading of the second part of the definition, we find that any input service used by the manufacturer, whether directly or indirectly in or in relation to the manufacture of final product and clearance of final product from the place of removal, stands eligible for availing as credit. It is undisputed, in this case, that the appellant had manufactured shoes in their factory premises and cleared the s....
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....attributable to the trading activity is ineligible to be availed as input service credit. Accordingly, we uphold the impugned order to the extent it denies the credit of the service tax paid on the services amounting to Rs. 13,27,497/-." 4.13 Similar view has been expressed by the Tribunal in the case of DSCL Sugar (supra) wherein following has been held:- "11. I have considered arguments on both the sides. I find that the question whether the place where goods are stored after clearance from the factory on payment of duty can be considered as "place of removal" for the purpose of Rule 2(l) of Cenvat Credit Rules, 2004 is no longer res integra because of the clarification issued by the C.B.E. & C. in the matter and approved by the decision of the Tribunal in the case of L.G. Electronics (supra) and the decision of Punjab & Haryana High Court in the case of Ambuja Cements v. UOI - 2009 (236) E.L.T. 431 (P & H) = 2009 (14) S.T.R. 3 (P & H). Therefore the godowns at Agra and Farrukhabad are to be considered as "place of removal" for the appellant notwithstanding the fact that sugar is an item subjected to specific rate of duty. 12. I have also considered the issue....