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2016 (12) TMI 21 - CESTAT NEW DELHI

2016 (12) TMI 21 - CESTAT NEW DELHI - TMI - Demand - Cenvat credit - GTA services - whether the “place of removal” is the factory of the appellant or the customer’s premises - Held that: - the appellants have submitted categorical supporting evidences to the effect that “place of removal’ is the customer’s premises only. As already noted they heavily relied on the terms of purchase orders, freight payment by the appellants, risk and insurance, inclusion of freight in the value for excise duty in .....

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, Advocate, for the appellant. Shri Amresh Jain, Authorized Representative (DR), for the Respondent. Per. B. Ravichandran :- The present appeal is against order dated 27/11/2012 of Commissioner, Bhopal. The appellants are engaged in the manufacture of cement and clinker liable to Central Excise duty. The cement is cleared either directly to the customers like industrial or institutional consumers or dealers from the factory or to the depots, thereafter to the customers. The dispute in the presen .....

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ted 27/11/12 disallowed total service tax credit of ₹ 3,14,66,838/- covering the period January 2005 to December 2011 as demanded in 4 different show cause notices. 2. We have heard the learned Counsel for the appellant and the learned AR for the Revenue and also perused the appeal records including written submissions and case laws. We note that the entire dispute in the present case resolves around the fact whether the place of removal is the factory of the appellant or the customer s pr .....

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ion in the SAP software. Otherwise the common understanding is FOB stands for delivery at the destination. The commercial invoices issued by the appellant show segregation of value of goods under transportation value for the purpose of VAT, as the excise duty is discharged on MRP basis inclusive of all taxes and transportation. No extra amount is recovered from the customers. The transport is arranged by the appellant and the charges are paid by them including service tax on reverse charge basis .....

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dump/works. Further, if the freight is on to pay basis, value of damage/shortage will be deducted. On these terms and wordings appearing in the transaction documents, the Original Authority proceeded to examine the terms sale and delivery in terms of Sale of Goods Act, 1930. The Original Authority held that ownership of the goods by the appellant during transit till delivery to the buyer has not been categorically established. It was also mentioned that the date of delivery of goods in the facto .....

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ace of delivery to be a place of removal merely on the basis of delivery. It was concluded that the appellants sold the goods ex-factory and the place of removal during the relevant period was only factory gate. The Original Authority arrived at the conclusion stating that the appellants failed to demonstrate with cogent evidence that the conditions that are essential for treating outward transportation as input service are satisfied to sustain their claim. 4. We find that the appellants have su .....

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