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M/s Birla Corporation Ltd. Versus Commissioner of C. Ex. & S. Tax, Lucknow

2015 (10) TMI 2521 - CESTAT ALLAHABAD

Cenvat credit - Service tax paid on transport charges for transportation of cement from the factory to the premises of the buyers - appellant were paying duty on basis of retail sale price preprinted on the cement bags as per notification number 4/2006-CE - goods are sold on FOR basis on the door step of the buyer - Held that:- in the facts of this case, “the place of delivery of goods” is the customer’s premises and the freight is borne by the appellant manufacturer. The “place of removal” has .....

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on basis. In the case of destination sale, the ownership and property is transferred when the manufacturer delivered the goods to the buyer at his premises. Accordingly, I hold that Cenvat Credit of service tax is available to the appellant on outward transport for FOR Sales made to the buyers. - Decided in favour of appellant with consequential relief - Ex. Appeal No. 52962/14 - Final Order No. 70180/2016 - Dated:- 29-10-2015 - Mr. Anil Choudhary, Member (Judicial) Shri Bipin Garg, Adv. for the .....

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he premises of the buyers. 2. The brief facts are that the appellant is engaged in manufacture of cement. The appellant have been taking Cenvat credit on various inputs, capital goods and input services. 12 periodical show cause notices were issued for the period November 2010 to October 2011 as it appeared to revenue that the appellant is not entitled to take Cenvat credit on outward freight for transportation of the finished goods from the factory to the premises of the dealer/customer totalli .....

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es from where the excisable goods are to be sold after their clearance from the factory. That reliance was also placed on CBEC circular number 97/8/2007 dated 23/8/07 wherein it has been classified that the place of removal is the premises of the buyer where - (i) the ownership of goods and the property in the goods remained with the Seller or the goods till the delivery of the goods in acceptable condition to the purchaser at his door step, (ii) the Seller borne the risk of loss or damage to th .....

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the factory gate. In view of the amendment in the definition of input service in 2008 and 2011 for the words from the place of removal with the words up to the place of removal were substituted. 4. Being aggrieved the appellant preferred appeal before the Commissioner (Appeals) who vide the impugned order rejected the appeal holding that the definition of place of removal under section 4 (2) (iii), applies to those premises from where the goods are to be sold after their clearance from the facto .....

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nd for that further no separate payments have been received from the purchasers on account of transport charges and further, freight charges was an integral part of the price of the goods. 4. Being aggrieved the appellant is in appeal before this Tribunal. 5. The Id. Counsel for the appellant states that he issue is no longer res integra and it is the settled by precedent decisions of the Division Bench of this Tribunal and the Honourable High Court. Reliance is placed on the ruling in the case .....

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al would depend upon the specific transaction in issue. Where the removal is pursuant to sales on FOR-destination basis, with the risk in the goods manufactured being borne by the manufacturer till delivery to the customer at its premises, and when the composite value of sales include the value of freight for the delivery to the customers premises, the place of removal would not be at the factory gate but at the customer s premises. The Id. Counsel further stats that it has been certified by the .....

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(236) ELT 431 (P & H) wherein under similar facts and circumstances, it has been held that Cenvat Credit is available to the manufacturer. 4. The Id. A.R. for revenue relies on the impugned order and further places reliance on the ruling off honourable Supreme Court in the case of CCE, Nagpur Vs. Ispat Industries Ltd. 5. Having considered the rival contentions. I find that the ruling in the case of Ispat Industries Ltd. (supra) relied upon by the Revenue, is of no help as in that case the is .....

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