TMI Blog2013 (8) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... JAB & HARYANA HIGH COURT] - They would be entitled for the Cenvat credit of service tax paid on the GTA service availed for outward transportation of the finished goods up to the customer’s premises - the duty on the finished goods was at an ad valorem rate, the definition of ‘place of removal’ as given in Section 4 of the Central Excise Act, 1944, would be applicable and accordingly if the sales, of the goods take place at the customer’s premises i.e. the sales are on FOR destination basis, the customer’s premises would be the “place of removal” - the transportation of the finished goods upto customer’s premises would be covered by the definition of ‘input service’. In the orders neither any findings had been given on the appellant’s plea that their sales were on FOR destination basis nor the Board’s Circular No. 97/6/2007-S.T., dated 23-8-2007 and the judgments of Hon’ble Punjab & Haryana High Court in case of Ambuja Cement Ltd. which was the jurisdictional High Court had been discussed - Order set aside - Matter Remanded back to CCE (Appeals) for de novo decision – Decided in favor of assesse. - E/2974/2007 and E/366/2008 - A/1189-1190/2012-EX(BR)(PB) - Dated:- 1-10-2012 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emises cannot be treated as the place of removal. Against these orders of the Commissioner (Appeals), these two appeals have been filed by the appellant. 2. Heard both the sides. 3. Sh. R. Santhanam, Advocate, the learned Counsel for the appellant, pleaded that the appellant s sales were on FOR destination basis and, therefore, it is the customer s premises which have to be treated as the place of removal , that therefore, the transportation up to the customer s premises has to be treated as transport up to the place of removal and the same would be eligible for Cenvat credit, that Cenvat credit in respect of outward transportation is also admissible, in view of the judgment of Hon ble Karnataka High Court in the case of Commissioner Central Excise and Service Tax LTU, Banglore v. ABB Limited, reported in 2011 (23) S.T.R. 97 (Kar.) and also the judgment of Hon ble Gujarat High Court in the case of Commissioner of Central Excise Customs v. Parth Poly Wooven Pvt. Ltd., reported in 2012 (25) S.T.R. 4 (Guj.), that in these judgments, it has been held in clear terms that during the period prior to 1-3-2008, the goods transports service used for transportation of the finished go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of dispute, transportation up to the place of removal was covered by the definition of inputs service , they would be entitled for the Cenvat credit of service tax paid on the GTA service availed for outward transportation of the finished goods up to the customer s premises. Since in these cases, the duty on the finished goods is at an ad valorem rate, the definition of place of removal as given in Section 4 of the Central Excise Act, 1944, would be applicable and accordingly if the sales, of the goods take place at the customer s premises i.e. the sales are on FOR destination basis, the customer s premises would be the place of removal , and in that case, the transportation of the finished goods upto customer s premises would be covered by the definition of input service . 5.1 The Board s Circular No. 97/6/2007, dated 23-8-2007 prescribed the following three criteria for treating a sale transaction as on FOR destination basis. (i) During the transit, the ownership of goods remains with the manufacturer-seller till the delivery of the goods in good condition to the buyer. (ii) During transit, the risk of the loss of goods or damage to the goods is of the manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relating to business in the inclusive part of the definition of input service does not cover, outward transportation from the factory. In this judgment, Hon ble High Court in Para 23 of the judgment after framing the question The question is up to what stage after manufacturing of the product, the service rendered in transporting the finished goods from the place of removal up to the place of delivery, constitutes input service as defined under the Cenvat Credit Rules, 2004, has - (a) in Para 29 of the judgment held that when the sales are on FOR destination basis, satisfying the criteria prescribed in this regard in the Board s Circular dated 23-8-2007, the transportation from the factory to the customer s premises would fall within the phrase - Clearance of the final products from the place of removal and, therefore, the assessee would be entitled to Cenvat Credit in respect of the same; and (b) in Para 30 of the judgment, after observing that since the definition of input service , contains both the words - means and includes , and not means and includes , the portion of the definition to which the words means applies has to be construed restrictively, as ..... 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