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2016 (3) TMI 892 - CESTAT MUMBAI

2016 (3) TMI 892 - CESTAT MUMBAI - TMI - Eligibility to avail CENVAT Credit on the Service Tax aid on outward transportation of the goods for the period March, 08 to Dec, 09 - Held that:- Hon'ble High Court of Karnataka in the case of Madras Cement Ltd. Vs. Commissioner of Central Excise [2015 (7) TMI 1001 - KARNATAKA HIGH COURT] for the proposition that the CENVAT Credit is available to them if it is demonstrated that the goods are delivered at buyer's place and on delivery only the title gets .....

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CENVAT Credit on the Service Tax aid on outward transportation of the goods for the period March, 08 to Dec, 09. It is the case of the appellant that the title of the goods passed on to the buyers on delivery to him and they have fulfilled the conditions laid down by the Board's Circular dated 23.8.2007 and the adjudicating authority has recorded the same and allowed the CENVAT Credit by dropping the proceedings initiated by the show-cause notice. On an appeal, the first appellate authority .....

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first appellate authority has not considered this point in correct perspective. 5. Learned AR on the other hand submits that the first appellate authority has correctly appreciated the law which has been laid down by the Hon'ble High Court of Kolkata in the case of Vesuvious India Ltd. - 2013-TIOL-1038-HC-KOL-ST, wherein the Hon'ble High Court has stated that the services rendered to the customer for the purpose of delivery the goods at the destination was covered by definition of input .....

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from March 2008 to December, 2009. Therefore the documents submitted by the assessee are the relevant evidences in the case and acceptable as the conditions laid down in the Board's Circular No. 97/8/07-ST dated 23.08.2007 are fulfilled by the assessee. From the documents submitted by the assesee it can be seen that the final products are insured by the assessee themselves and there is term of delivering the goods to the doors of the customer. This clearly indicates that the ownership of the .....

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a) was considering an identical issue, post amendment to definition of input service as provided under Rule 2(l) of the Cenvat Credit Rules, 2004. The said ratio is reproduced as under:- 6. The specific case of the appellant-assessee is that the sale of cement was completed only after delivery was made to the buyer. Invoices were produced and filed before the assessing officer, copies of which have also been placed before us for our perusal. In the said invoice, the price of cement has been calc .....

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, the assessing officer has recorded "that on perusal of the invoices it is found that the Price Terms mentions as FOR destination" but has proceeded to record as under: "I find that the assessee has not been able to establish the fact that: (i) the ownership of the goods and the property in the goods remained with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to .....

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he parties and considering the facts and circumstances of this case, we are of the considered view that as long as the sale of the goods is finalized at the destination, which is at the door step of the buyer, the change in definition of 'input service' which came into effect from 01.04.2008 would not make any difference. A perusal of invoices makes it clear that the goods were to be delivered and sale completed at the address of the buyer and no additional charge was levied by the asses .....

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rtained in terms of Central Excise Act, 1944 read with the provisions of the Sale of Goods Act, 1930 which has been dealt with in detail in the said Circular. According to the provisions of the Sale of Goods Act, 1930, the intention of the parties as to the time when the property in goods has to pass to the buyer is of material consideration. The record clearly shows that the intention of the parties was that the sale would be complete only after goods are delivered by the seller at the address .....

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lar dated 20.10.2014. 10. Sri C.Shashikantha, learned counsel for the respondents has submitted that he has received written instructions from the Commissioner of Central Excise and Service Tax, Bangalore, mentioning that in view of Rule 2(qa) of the CENVAT Credit Rules 2004 and the clarification given in paragraph-6 of Board's Circular dated 20.10.2014, the contention of the appellant-assessee should not be accepted and as such, assessee would not be entitled to CENVAT credit on outward tra .....

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essee and not the Revenue. 11. From the facts of the present case, it is clear from the invoices that title of the goods had passed on from seller to buyer only at the place of destination, which is the address of the buyer. As such, the buyer had no right over the goods till delivered to it. The Tribunal has not considered this aspect and has only relied on the amendment made to the definition of "input service" with effect from 01.04.2008 and rejected the claim of the appellant-asses .....

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