TaxTMI 
TaxTMI 
2026 (9) TMI 819
X X X X Extracts X X X X
X X X X Extracts X X X X
..../-, availed on clearing and forwarding services during the period from March, 2008 to March, 2011, has been disallowed along with applicability interest. An equivalent penalty has also been imposed under Rule 15(2) of the Cenvat Credit Rules, 2004. 2. The fact, in brief, is that the appellant is engaged in the manufacture of cement falling under chapter 25 of the Central Excise Tariff Act, 1985. Cement manufactured by the appellant was cleared from factory and also stock-transferred to its depot/warehouses situated in different states. Such depots were managed by clearing and forwarding agents, who undertook, inter alia, receipt of cement from railway stockyards / transporter's godowns, unloading, storage, handling, loading into transpor....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... reflected in the ER-1 returns. The appellant's records were also subjected to departmental audit in September, 2010 and January, 2012. There was, therefore, no suppression of material facts with intent to evade duty warranting invocation of extended period or imposition of penalty. 7. Learned Authorized Representative reiterated the findings of the impugned order. It is submitted that after the amendment to Rule 2(l) w.e.f. 01.04.2008, credit is available only in respect of services used "up to the place of removal". Mere description of sales as FOR-destination sales would not automatically make the buyer's premises the place of removal. Reliance is placed on the decisions of the Hon'ble Supreme Court in Commissioner Vs Ultra Tech Cemen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation contracts, the place of removal must be determined after examining the terms of the contracts and applying the principles laid down by the Hon'ble Supreme Court in Commissioner Vs Roofit Industries Ltd., 2015 (319) ELT 221 (SC) and Commissioner Vs Emco Industries Ltd., 2015 (322) ELT 394 (SC), the judgment of the Karnataka High Court in Bharat Fritz Warner Ltd., supra, and CBEC Circular No. 1065/4/2018 - CX dated 08.06.2018. It follows that the mere use of expression "FOR-destination" in invoices or contract is not, by itself, conclusive. The relevant factors include; i) The point at which total in the goods passed to the buyer; ii) The party who bore the risk of loss or damage during transit; iii) Whether f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....made available. Nothing has been brought on record to establish any positive act of fraud, collusion, wilful misstatement or suppression of facts with intent to evade payment of duty. The Hon'ble Supreme Court in Cosmic Dye Chemical Vs CCE, 1995 (75) ELT 721 (SC), Pushpam Pharmaceuticals Company Vs CCE, 1995 (78) ELT 401 (SC) and Uniworth Textiles Ltd., Vs CCE, 2013 (288) ELT 161 (SC) has held that mere omission or an incorrect interpretation of law is insufficient to invoke the extended period; the suppression must be deliberate and accompanied by an intent to evade the duty. In the present case, the availment of credit was based upon the appellant's disclosed interpretation of the statutory provisions. Divergent judicial views also exited....