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TMI Blog2009 (2) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,232/- 2. M/s. Suyash Castings Pvt. Ltd. ADJ/111/KOP-1/2008 dated 28-7-2008 234/08 01/07 to 10/07 15,799/- 10,000/- 3. M/s. Aadi Plastic Industries. ADJ/112/KOP-1/2008 dated 28-7-2008 249/08 12/06 to 03/07 17,764/- 10,000/- 4. M/s. Menon Pistons Rings Pvt. Ltd. ADJ/113/KOP-1/2008 dated 28-7-2008 255/08 01/05 to 06/06 and 01/07 to 11/07 71,495/- 10,000/- 5. M/s. Rathod Industries ADJ/54/KOP-1/07 dated 15-5-08 203/08 03/05 to 09/06 58,847/- 10,000/- 6. M/s. Paranjape Autocast Pvt. Ltd. 55/ADJ/2008 dated 15-4-2008 193/08 04/06 to 07/07 1,19,371/- 30,000/- (hereinafter referred as the appellants) The brief facts involved in all six appeals are that all the appellants have availed 'input service credit' pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in the case of Vardhaman Special Steels v. CCE - 2007 (8) S.T.R. 374 [2008 (223) E.L.T. 220]; (iv) that in respect of Appeal No. 1 and 2, the appellants also delivered the goods at the port of export and since the goods were delivered only at the port of export, the 'port of export' should be considered as the 'place of removal' in view of the above Board's Circular and also the decision of the Tribunal in the case of RSWM Ltd. v. CCE, Jaipur - 2008 (223) E.L.T. 481 (Tri.-Delhi); (v) that as regards imposition of penalty, all the appellants claims that since the issue involved is of interpretation, and also there were conflicting decisions on the issue, penalty is not imposable. The appellants rely on the following decisions - (a) In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overing the period subsequent to the period covered under the present appeal. 4. I have gone through the case records including records of PHs and decisions relied upon by all six appellants. As the issue involved in all six appeals is one and the same, I take all six appeals for a common decision. After waiving pre-deposit, I take all appeals for taking decision on the main appeal memorandums. The issue involved in all six appeals are that the appellants cleared their final products from their factory premises to the customers' end and the adjudicating authorities have concluded that the transports which were used for transporting the goods from the factory premises to the customers, cannot be considered as 'input service', since the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion, first it has to he seen that whether the prices (AV) loaded by the appellants are inclusive of 'freight' in view of the fact that the Assistant Commissioner has concluded that the prices were not inclusive of freight and the appellants did not produce any evidence to prove that the property vests in them till the delivery at the place of customers. In this regard, I have gone through the few purchase orders, invoices and insurance in some cases and observed that the goods were moved on 'FOR' destination to the customer's end. Despite the fact, the Assistant Commissioner concluded that the freight did not form part of the assessable value, which is not factually correct. From the above, it follows that once the goods are moved on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property of goods remained with the seller of the goods till the delivery of the goods in acceptable conditions to the purchaser at his door steps; (ii) the seller bore the risk of loss or damage to the goods during the transit to the destination and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service tax paid on the transportation upto such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under Section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the said place. The above clarification ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods were transferred only at the customers end and thus, as per the definition of Section 4 of the Central Excise Act, 1944 read with the Board's clarification, the 'place of removal' in the present issue is the 'customers end'. The decision of the CESTAT Delhi in the case of Vardhaman Special Steels v. CCE, Ludhiana - 2007 (8) S.T.R. 374 (Tri.-Delhi) also supports the issue on hand. The relevant portion of the decision contained in para 3 and 4 is reproduced as under :- "3. The dispute is about eligibility of service tax (paid on transport) as Cenvat credit. Service tax in question was paid on outward transport and was denied upon a finding that the transport was after the duty paid removal of the goods. The learned counsel would c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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