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2022 (10) TMI 1213 - AT - Central ExciseRecovery of CENVAT Credit alongwith interest and penalty - input services - outward freight charges in case where the goods are removed from the factory for delivery on for destination basis - place of removal - failure to discharge burden of proof on the part of assessee - HELD THAT:- In terms of the decision in COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [2015 (4) TMI 857 - SUPREME COURT] the point where transfer of ownership in goods from seller to buyer occurs is the place of removal for the purpose of Section 4 of the Central Excise Act, 1944 and all the expenses incurred upto that point become the part of the transaction/ assessable value for the purpose of levy of cenvat duty. In case of the FOR destination sale admittedly the transfer in property in the goods would happen at the point of the delivery of the goods and all expenses till that point would be includible in the transaction value, i.e. freight charges upto that point are includible in the assessable value determined under Section 4 - Admittedly appellant had paid duty including the freight charges upto the point of delivery at the destination. That being so the point of delivery is the place of removal for the purpose of determination of eligibility to CENVAT Credit in respect of the GTA Services received by the appellant. From the question framed itself it is quite evident that bench has referred the matter without considering the clarification issued by the Board in 2018. Since the clarification issued by the Board goes to the root of the matter and clarifies the conditions wherein the benefit of credit needs to be allowed following the decision of the Apex Court in the case of Roofit Cement, the decision is sub-silentio and cannot be treated as binding precedent. Appeal allowed.
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