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TMI Blog2018 (12) TMI 2011X X X X Extracts X X X X X X X X Extracts X X X X ..... OIO No. 20/2010- C.Ex dt. 30.09.2010 2. E/720/2012 OIA No. 56/2011 (G) CE dt. 23.12.2011 3. E/21912/2014 OIA No. 24,25 & 26/2014 (G) CE dt. 21.04.2014 4. E/21913/2014 5. E/21943/2014 2. The appellants herein are manufacturers of beverages and they have appointed distributors/ dealers as per the terms of agreement. The terms and conditions of sale of the product by the appellant to the dealers are that the dealer shall make full advance payment at the time of placing the order or before taking delivery of materials that may be required for the sale of the products. The appellant claimed input service credit on GTA services including the credit of services rendered on transport of goods to the dealers premises which was disallowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excisable goods to determine the point of "sale". As per the above two Apex Court decisions this will depend on the terms (or conditions of contract) of the sale. 8. The 'insurance' of the goods during transit will, however, not be the sole consideration to decide the ownership or the point of sale of the goods. " (ii) Circular dt 23-8-2007: "8.2…….. it is, therefore, clear that for a manufacturer/consignor, the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the place of removal as per the definition. In case of a factory gate sale, sale from a non-duty paid warehouse, or from a duty paid depot (from where the excisable goods are sold, after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd Vs Commissioner of Central Excise, New Delhi [2002 (143) ELT 131 (Tri-Del)] . This principle was upheld by the Hon'ble Supreme Court in case of M/s. Escorts JCB Limited v. CCE, New Delhi [2002 (146) E.L.T. 31 (S.C.)]. 4) Instances have come to notice of the Board, where on the basis of the claims of the manufacturer regarding freight charges or who bore the risk of insurance, the place of removal was decided without ascertaining the place where transfer of property in goods has taken place. This is a deviation from the Board's circular and is also contrary to the legal position on the subject. 5) It may be noted that there are very well laid rules regarding the time when property in goods is transferred from the buyer to the seller ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied and may be given either before or after the appropriation is made. Subsection (2) of Section 23 further provides that where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purposes of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract." 6) It is reiterated that the place of removal needs to be ascertained in term of provisions of Central Excise Act, 1944 read with provisions of the Sale of Goods Act, 1930. Payment of transport, inclusion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) which is binding on the officers has not been followed by the adjudicating authority while denying the CNEVAT credit under CENVAT Credit Rules, 2004. Aforesaid Board's circular clearly states that the place of removal is the point where the sale has been completed under Sale of Goods Act, 1930, i.e., the ownership of the goods gets shifts to the buyer. It is the assertion of the Learned Counsel that this transfer of the goods takes place only dealer's premises although they received the payments in advance and hence the dealer's premises are the place of removal. This is a factual aspect to be verified in respect of each of the agreements because we find that some agreements indicate that the delivery will be made by the appellant at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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