TMI Blog2019 (1) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... en the parties - thus, the appellant is not entitled to CENVAT credit on GTA services. Penalty - Held that:- Since the issue relates to interpretation of the definition of ‘input service’, therefore, suppression cannot be alleged against the appellant and penalty cannot be imposed. Appeal dismissed - decided against appellant. - E/20383/2018-SM & E/20390/2018-SM - Final Order No. 21955–21956/2018 - Dated:- 31-12-2018 - SHRI S.S GARG, JUDICIAL MEMBER Mr. G. Shviadass, Advocate For the Appellant Mrs. Kavitha Podwal, Superintendent (AR) For the Respondent ORDER Per: S.S GARG The appellants have filed these two appeals against the common impugned order dated 20.11.2017 passed by the Commissioner (A) whereby the Commissioner (A) has upheld the Order-in-Original and rejected the appeal of the appellant. Since the issue involved in both the appeal is identical and there is a common impugned order, both the appeals are being taken up for discussion and disposal. 2. The details of both the appeals are given herein below: Sl. No. Appeal No. E/20383/2018 E/20390/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the customer. The appellant also receives transportation services from GTA service provider for transportation of goods to the customer s premises and discharges service tax under reverse charge basis. The appellant is availing the credit of the taxes paid on the aforementioned GTA services to the extent the said services are used for transportation of the goods to the customer s premises in terms of the contract entered into with such customers. The department entertained a view that in view of the Circular dated 23.8.2007, since the outward freight charges do not form an integral part of the price of the goods, the appellant is not eligible to avail and utilize the credit of service tax paid on freight. After following due process, both the authorities below have confirmed the demand along with interest and penalty. Aggrieved by the said order, the appellant have filed these appeals. 4. Heard both the parties and perused the records. 5. 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 and by ignoring the binding judicial precedent. He further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court in the case of Escorts JCB Ltd. vs. CCE: 2002 (146) ELT 31 (SC) has held that the factory premises is the place of removal since the transaction of sale, payment of price and delivery of goods to the carrier occurs at the factory premises. Thereafter, the learned counsel also relied upon the decision in the case of CCE vs. Roofit Industries LTd.: 2015 (319) ELT 221 (SC) and CCE vs. Emco Ltd.: 2015 (322) ELT 394 (SC) wherein on facts it was held that the sale of goods do not take place at the factory premises of the appellant but at the buyer s premises. He also referred to the apex court decision in the case of Ispat Industries Ltd.: 2015 (324) ELT 670 (SC) wherein it has been held that premises referred to in the definition of the place of removal to a manufacturer s place or premises and not the buyer of the excisable goods. He further submitted that after the decision of the apex court in the case of Ultratech Cement Ltd.: 2018 (9) GSTL 337 (SC), the CBEC has issued a detailed Circular dated 8.6.2018 and provides clarification on the implementation of the decision of the apex court. He further submitted that it is no longer in dispute that the cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the contracts entered into with their customers, they are supplying the goods on FOR basis and are availing the credit of the service tax paid on the GTA services to the extent that such services are used for transportation of goods to the customer premises. As per the department, the appellant is not eligible to take CENVAT credit on the freight component charged on the invoices because the same does not form part of the assessable value of the goods for payment of excise duty by the appellant. Further, I find that vide various circulars issued in 2007, 2014, 2015 by the Board, the Board has clarified that the place where the sale takes place is the place of removal because the property in goods passes at the place of the buyer. There were decisions which have specifically held that the place of removal needs to be ascertained in terms of provisions of Central Excise Act, 1944 read with provisions of Sale of Goods Act, 1930 and the terms of contract between the parties. I also find that it is not in dispute that the credit of input service is available only up to the place of removal and not beyond it. But this issue is no more res integra in view of the judgment of the apex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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