TaxTMI 
TaxTMI 
2014 (10) TMI 679
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....y 2012, respectively, triggered the proceedings. The first show cause notice dated 12/12/11 invoked the extended period of limitation; the normal period under this show cause notice being December 2010 to January 2011, the prior period being covered by the extended period. After due process the impugned adjudication order was passed. 3. The relevant facts :- The assessee is a manufacturer of cement, a commodity falling under Chapter 25 of the 1st Schedule of the Central Excise Tariff Act, 1985. In response to the show cause notices, assessee specifically pleaded [recorded at paragraphs G & H of the impugned order], that the assessee sells its final products on FOR basis to all customers; that freight charges are included in the assessable value of the final product; that excise duty was discharged on the assessable value, inclusive of freight charges; that the transit risk, in transportation of the final products is borne by the assessee; that property in the goods passes to the customers on delivery at the customers premises; that on the basis of these transactional facts, the place of removal under Section 4 (3) (c) of the Central Excise Act, 1944 was the customer's premises; a....
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.... goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during 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 up to 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 (emphasis added). 5. Though the Tribunal view in M/s Ambuja Cements Ltd. (supra) stood expressly over-ruled by the High Court [which is also the Jurisdictional High Court, within whose territorial limits the Commissioner, Rohtak operates], para 26 of the impugned order, extensively adverts to the Tribunal judgment despite being sensitized to the fact that this judgment stood expressly overruled by the High Court. The impugned order in para 27 adverts to relevant provisions of the Cenvat Credit Rules, 2004, Section 4 of the Central Excise Act, 1944; an....
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....s rendered themselves ineligible for taking the CENVAT Credit and the CENVAT Credit already taken by them, was inadmissible to them. 32. It has been clearly established from the foregoing facts that the party has violated the provisions of Section 4 of the Central Excise Act, 1944, Rule 4 of the CENVAT Credit Rules, 2004, and para 8.2 of the Circular No. 97/8/2007 dated 23/08/2007. The cases cited by the party, deal with a different matter and are not relevant to the instant case. The credit of Service Tax was not admissible to the party and they have taken the same illegally and clandestinely as the same was taken in violation of the above said Rules. I find that the party never disclosed to the Department the fact of availing CENVAT credit of service tax paid on outward freight. Had the audit party not visited the factory for audit of records this would never have come to the notice of the Department. As such extended period of five years is invokable under the provisions of Section 11A of Central Excise Act, 1944 for suppression the facts from the Department with intent to evade payment of duty. Further, I hold that wrongly availed CENVAT credit of Rs. 1,71,75,818/- and Rs. 1,4....
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....e impugned order is wholly perverse and a sub-standard exhibit of adjudication. As pointed out by the Supreme Court in Union of India vs. Mohan Lal Capoor AIR 1974 S.C. 87; Reasons are the links between the material on which conclusions are based and the conclusions. Mere recording of a conclusion in the impugned order, that the assessee had failed to fulfill the relevant conditions for treating its sales as on FOR basis and is consequently disentitled to claim Cenvat credit on the component of the freight charges incurred by treating the place of removal as the customers premises, is a conclusion, as earlier noticed, wholly bereft of analysis and clearly contrary to the material and evidence on record. 10. Despite valiant efforts, learned AR was unable to identify even a scintilla of reason by the Adjudicating Authority, for predicating the bald conclusions set out in the impugned order. 11. In M/s Ultratech Cement Ltd. vs. CCE, Raipur, 2014 - TIOL - 478 - CESTAT - DEL [a judgment inter-partes], this Tribunal, following earlier judgments including the judgment in Gujarat Ambuja Cements Ltd. vs. CCE, Ludhiana (supra), ruled that in cases where the duty on the final product....