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TMI Blog2019 (5) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... idered the rival contentions, have perused the documents placed on record and have also gone through the various decisions/circulars/instructions relied on during the course of arguments. 3.1 The primary contention of Ms. S. Sridevi, Ld. Advocate for the appellant, is that the CENVAT Credit on the impugned input service was allowable since there was an agreement of sale on 'FOR' Destination basis; the Purchase Orders coupled with insurance and freight made it all the more clear that the property in goods was transferred to the buyer at the place of the buyer and therefore, the reversal by the impugned order was bad. 3.2 She further contends that these aspects have been gone into by the adjudicating authority who has, after considering all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on 'FOR' Destination basis, the freight and insurance for which were borne by the appellant and accordingly, drew attention to the findings at paragraphs 20 and 21 (at page 123 of the appeal paper) of the Order-in-Original dated 16.12.2018. 6.1 The Division Bench no doubt has considered the decisions of the Hon'ble Supreme Court in the case of M/s. Roofit Industries Ltd. (supra) and M/s. Ultra Tech Cement Ltd. (supra) and has observed as under : "8. We find that M/s. Roofit Industries Ltd., (supra) was an earlier judgment which primarily went into the includibility of certain costs and incorporated the freight incurred for delivery of the goods to the place of buyer in the assessable value. When the sale of goods takes place at the buy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en an opportunity "to establish which is the place of removal for them and then look into the eligibility of credit on GTA Services availed for outward transportation up to the buyer's premises in the light of the above judgement and the Board's Circular dated 08.06.2018". 7.1 For the adjudicating authority to apply either M/s. Ultra Tech Cement Ltd. (supra) or M/s. Roofit Industries Ltd. (supra), the authority should first ascertain if it is a case of GTA simpliciter. On going through the judgement of M/s. Roofit Industries Ltd. (supra), the following observations of the Hon'ble Apex Court are relevant : "8. A contextual examination of the aforesaid provision, for the purpose of the present case, would bring out the following the pertin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the various Government authorities. One such order, i.e., order dated 24-6-1996 placed by Kerala Water Authority is on record. On going through the terms and conditions of the said order, it becomes clear that the goods were to be delivered at the place of the buyer and it is only at that place where the acceptance of supplies was to be effected. Price of the goods was inclusive of cost of material, Central Excise duty, loading, transportation, transit risk and unloading charges, etc. Even transit damage/breakage on the assessee account which would clearly imply that till the goods reach the destination, ownership in the goods remain with the supplier namely the assessee. As per the 'terms of payment' clause contained in the procurement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the sale of goods did not take place at the factory gate of the assessee, but at the place of the buyer on the delivery of the goods in question. 8. A cumulative reading of the above observations with the finding of this Bench would require the appellant to first establish whether there was an agreement or the purchase order wherein it is made clear as to the terms; and the manufacturer was required to deliver the manufactured goods at the buyer's premises; and then comes the transfer of ownership, which is to be ascertained in the light of the observations at paragraph 13 of M/s. Roofit Industries Ltd. (supra). Thus, without examining these aspects, the observations of the adjudicating authority at paragraphs 20 and 21, as pointed out b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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