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TMI Blog2019 (6) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... amended from 01.03.2008 insofar as the Cenvat Credit on the Goods Transport Agency service used for outward transportation of goods is concerned. It reads as follows: "(l) "input service" means any service,- (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of remov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory; from where such goods are removed." 4. It is his submission that in their case, the sales are on FOR basis which means, the delivery as per contract has to be at the buyer's premises only. Therefore, the term "place of removal" as far as they are concerned, does not mean the factory gate but it means the buyer's premises. This is because the goods have to be sold from the place to be called as 'place of removal' and the sale is completed only when the handing over the goods is complete which takes place at the buyer's premises. Therefore, as held by the Hon'ble Apex Court in the case of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Ultratech Cement (supra) and asserts that case in the Ultratech cement is identical to this case and therefore same case law should be applied and this Tribunal being bound by the judgment of the Apex Court may reject the appeal. 7. Countering the argument, learned counsel submits that the decision of Ultratech Cement (supra), being Sub-silentio, cannot be applied in the present case of the appellants. He would submit that the Hon'ble Supreme Court in the aforesaid case had proceeded on the assumption that the factory gate is place of removal without independently examining whether it is so. Hon'ble Supreme Court has not considered the applicability of the circular of the CBEC dated 23.08.2007 on the ground that it ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCR, 2004 w.e.f. 01.03.2008 when the credit has been restricted to the services availed for transportation upto the place of removal. This needs to be examined in the light of appellant's claim that the cement which they sell is on FOR basis and therefore, the buyer's premises should be considered as place of removal. Learned counsel submits that in the aforesaid case, the Hon'ble Apex Court has not examined the issue of sale on FOR basis at all and therefore, the ratio of judgment should not apply. Learned departmental representative, on the other hand, asserts that facts are identical as can be seen from the judgment of the Hon'ble Supreme Court in the case of Ultratech Cement (supra) and therefore, the appeal must be decided against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sk of the transport being borne by the seller. The case in hand is identical to this case. Accepting the arguments of the assessee in the Ultratech Cement (supra), Commissioner (Appeals), CESTAT as well as the Hon'ble High Court of Karnataka held that the assessee is entitled to Cenvat Credit on the transport of goods to the buyer's premises. This decision was set aside by the Hon'ble Apex Court in the following words in Para 13. "13. The upshot of the aforesaid discussion would be to hold that Cenvat Credit on goods transport agency service availed for transport of goods from place of removal to buyer's premises was not admissible to the respondent. Accordingly, this appeal is allowed, judgment of the High Court is set aside and the Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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