TMI Blog2019 (1) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods include outward freight - the various circular issued by the Board in the year 2007, 2014 clearly show that evidences of the parties is to be ascertained as to when the property in the goods passes along with the other documents i.e. purchase order, invoices etc. - there is no infirmity in the impugned order demanding the cenvat credit wrongly availed by the appellant. Extended period of limitation - penalty - Held that:- There were divergent views during the period in dispute on the issue, therefore the allegation of suppression with intent to evade payment of duty is not sustainable - the demand beyond the normal period of limitation is set aside as there was no intention to evade payment of duty - the penalties imposed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E/21758/2017 March 2015 to August 2015 Rs.4,63,422/- Rs.46,342/- under Rule 15(1) read with S.11AC 30.03.2016 Briefly the facts of the case are that the appellants are engaged in the manufacture of CNC Machines, special purpose machines, milling machines falling under Chapter 84 of CETA, 1985. During the audit of the records of the unit, it was noticed by the Department that the appellants had wrongly availed input service credit on the service tax paid on outward freight for transporting finished goods from the factory to the buyer s premises. The Department alleged that since the factory gate is the place of removal for the goods cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with penalties. Aggrieved by the said orders, appellant filed appeals before the Commissioner who rejected the appeals. 2. Heard both the parties and perused the records. 3. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that in the present case the place of removal is the buyer s place in terms of Section 4(3)(c) of Central Excise Act 1944 read with Explanation to Rule 5 of the Central Excise (Determination of Price of Excisable Goods). He further submitted that outward freight has been included while computing the assessable value of the goods and the invoices and purchase orders clearl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in the case of Ultra Tech Cement Ltd., the Board has issued a Circular dated 08.06.2018 whereby they have clarified that for the purpose of availing cenvat credit on GTA, facts of each case is to be ascertained. The learned counsel further submitted that the said Circular clarifies the doubts in the mind of field formation as to how they have to find out where the sale takes place as per the evidences of the parties. 4. On the other hand the learned AR defended the impugned order and submitted that the appellants are not entitled to credit of service tax paid on GTA as the same does not fall within the definition of input service . He further submitted that earlier there were certain decisions in favour of the appellant as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T in Gujarat Ambuja Cement Ltd. and M/s. Ultratech Cement Ltd. Those judgments, obviously, dealt with unamended Rule 2(l) of Rules, 2004. The three conditions which were mentioned explain the place of removal as defined under Section 4 of the Act, there is no quarrel upto this stage. However, the important aspect of the matteris that cenvat credit is permissible in respect of input service and the Circular relates to the unamended regime. Therefore, it cannot be applied after amendment in the definition of input service which brought about a total change. Now, the definition of place of removal and the conditions which are to be satisfied have to be in the context of upto the place of removal. It is this amendment which has made t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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