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TMI Blog2016 (7) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 30.10.2009. The appellant filed a reply to the show-cause notice and the adjudicating authority vide order dated 14.12.2010 disallowed the credit and thereafter the appeal was filed before the Commissioner (Appeals) who upheld the order of the adjudicating authority and rejected the appeal and hence the present appeal. 3. Heard both sides. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the learned Commissioner (Appeals) has failed to consider the documents and submissions made by the appellant as well as the judgements rendered by various Tribunals. He further submitted that the learned Commissioner (Appeals) has concluded that factory is the only place of removal and the buyers premises or port of export in India are not places of removal and consequently has denied the credit. He also submitted that the primary issue to be decided in this case is whether based on the purchase order/invoices and the agreements between the parties and the inputs as submitted by the appellants, it could be said that the place of removal is the buyers premises and port of export where up to such places the appellants were responsible and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed to take credit, subject to satisfying the conditions mentioned in Para (i) (ii), and (iii) of the circular and para (iii) reads as under: (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 Good Act, 1930) occurred at the said place. 6.1 This contention of the appellant cannot be accepted, because the appellant has not put forth any concrete evidence of contract/agreement, of the seller and the buyer, to prove that the seller is the owner of the goods beyond the factory gate and also upto the place of buyer. It is not shown categorically that freight charges were integral part of the price of the goods delivered at customer's premises during the relevant time period. Hence, place of removal is the factory gate in the instant case. The appellants are eligible for Cenvat Credit up to the place of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they have fulfilled all the requisites of Boards Circular. The reliance placed by the Hon'ble Tribunal on the decision of Punjab and Haryana High Court in the case of Gujarat Ambuja Cements Vs UOI [2009(14)STR 3 (P&H)] is not applicable to the present dispute as the facts involved are clearly distinguishable in this case. 6.3 On the other hand, the appellants during the course of personal hearing have categorically stated that the freight charges were an integral part of the price of the goods delivered to the customer. On perusal of a select few clearance invoices, I find that the appellants have paid the applicable Central Excise Duty on the assessable value indicating Freight prepaid by GIL against Freight particulars. If the Freight & Insurance components form part of the assessable value, the appellants ought to have included the said components to the assessable value for the purpose of payment of Central Excise Duty. In the absence of which I am not inclined to accept the appellants contention that freight & insurance have been included for the purpose of arriving at the assessable value on which Central Excise Duty has been discharged. Whereas, in this case the purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: This issue has been examined in great detail by the CESTAT in the case of M/s Gujarat Ambuja Cements Ltd Vs CCE Ludhiana [2007(006)STR 0249 Tri-D]. In this case, CESTAT has made the following observations:- the post sale transport of manufactured goods is not an input for the manufacturer/consignor. The two clauses in the definition of input services take care to circumscribe input credit by stating that service used in relation to the clearance from the place of removal and service used for outward transportation upto the place of removal are to be treated as input service. The first clause does not mention transport service in particular. The second clause restrict transport service credit upto the place of removal. When these two clauses are read together, it becomes clear that transport service credit up to the place of removal. When these two clauses are read together, it becomes clear that transport service credit can not go beyond transport upto the place of removal. The two clauses, the one dealing with general provision and other dealing with a specific item, are not to be read disjunctively so as to bring about conflict to defeat the laws scheme. The purpose of inter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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