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2016 (6) TMI 468 - CESTAT ALLAHABAD

2016 (6) TMI 468 - CESTAT ALLAHABAD - TMI - Eligibility of Cenvat credit of services at their retail outlets from where sales are effected - No sales are effected at the factory gate but duty is paid at the time of clearance - Held that:- since the goods are not sold at the factory gate but are sold at the retail outlets, therefore, by virtue of the express provisions of Section 4(3)(c)(iii) of the Central Excise Act, 1944 the place of removal in the case of appellant will be the retail outlets .....

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ioner) AR ORDER Per H K Thakur This appeal has been filed by the appellant against Order-in-Original No.84/Commissioner/NOIDA/2012-13 dated-31.03.2013 passed by Commissioner, Noida under which a demand of ₹ 51,44, 507/- has been confirmed by the Adjudicating authority by denying CENVAT Credit on certain services alongwith interest and an equivalent amount of penalty has also been imposed under CENVAT Credit Rules, 2004. 2. Shri B.L. Narasimhan (Advocate) and Shri Karan Sachdev (Advocate) a .....

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s made through appellant's own retail shops from where the goods are sold to the customers. That only a very little quantity of garments are sold to the franchisees and that too from the appellants warehouses. It is the case of the appellant that by virtue of definition of "place of removal' given under Section 4 (3) (c) of the Central Excise Act, 1944 in their case the place of removal will be the retail shops from where goods are sold. Learned Advocate made the bench go through th .....

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d 2/2/2006 also clarified that place of removal defined under Section 4 of the Central Excise Act, 1944 will also be applicable to MRP based assessment under Section 4A for availing CENVAT Credit by virtue of Rule 2 (t) of CENVAT Credit Rules. It was his case that credit with respect to each of the services availed at the retail outlets is admissible on merits, as the same are place of removal, in view of various case laws. Learned Advocate gave a chart of each of the services on which credit wa .....

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oner (A.R.), on the other hand argued that the place of removal is the factory gate as the duty is paid at the time of clearance from factory. That the services availed at the retail shops of the appellants are beyond the place of removal hence CENVAT Credit is not admissible. Learned A.R. thus strongly defended the order passed by the Adjudicating authority. 4. Heard both sides and perused the case records. The issue involved in these proceedings is whether appellant will be eligible to CENVAT .....

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Rules, the definition given in Section 4 (3) (c) of the Central Excise Act, 1944 can be followed. As per this definition, place of removal is as follows: "place of removal "means (i)a factory or any other place or premises of production or manufacture of the excisable goods; (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without 1[payment of duty; 2(iii) a depot, premises of a consignment agent or any other place or premi .....

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place of removal in all cases should be the factory gate by virtue of definition given in Section 4 (3) (c) of the Central Excise act, 1944. In the existing factual matrix in the case of the appellant since the goods are not sold at the factory gate but are sold at the retail outlets, therefore, by virtue of the express provisions of Section 4 (3) (c) (iii) of the Central Excise Act, 1944 the place of removal in the case of appellant will be the retail outlets from where goods are sold. This vie .....

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ncludes services used in relation to setting up, modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage up to the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry/ And security, inwa .....

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n reading of the second part of the definition, we find that any input service used by the manufacturer, whether directly or indirectly in or in relation to the manufacture of final product and clearance of final product from the place of removal, stands eligible for availing as credit. It is undisputed, in this case, that the appellant had manufactured shoes in their factory premises and cleared the same to their own showrooms situated at various places. It is also undisputed that the sale of s .....

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