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2019 (8) TMI 487

..... LD THAT:- It is undisputed that the decision of the Hon’ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] covers even the post-amendment period, which is binding on all lower authorities. However, as the issue in the case on hand involves delivery on ‘FOR’ destination basis, which is the trump card of the assessee’s pleading and which clearly has not at all been discussed by the Adjudicating Authority or even by the First Appellate Authority, the matter is required to be remitted to the file of the First Appellate Authority for the very limited purpose of considering the explanations of the appellant filed in response to the Show .....

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..... y evidences in support of its claim as to the sale at the customer s place i.e., on FOR destination basis, both the authorities have not at all considered the same and consequently, there is also no finding by either of them on the documents so furnished by the appellant. 2.1 Per contra, Shri. L. Nandakumar, Ld. AR appearing for the Revenue, contended that there is no evidence placed on record by the appellant as to the documentary evidences furnished before the lower authorities to prove its case that the sale is on FOR destination basis. But however, in the interests of justice, if the same were indeed furnished and the authorities below have not considered the same while passing respective orders, the assessee may be given one more oppor .....

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..... s or such other premises as the buyer may direct the manufacturer to send his goods. As a matter of law therefore, the Commissioner s order and Revenue s argument based on that order that freight charges must be included as the sale in the present facts took place at the buyer s premises is incorrect. Further, for the period 1-7-2000 to 31-3-2003 there will be no extended place of removal, the factory premises or the warehouse (in the circumstances mentioned in the Section), alone being places of removal. Under no circumstances can the buyer s premises, therefore, be the place of removal for the purpose of Section 4 on the facts of the present case. 3.1 Rebutting the contentions of the Ld. AR, Ld. Consultant for the appellant submitted that .....

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..... the goods reached the doorstep of the purchasers and that it was the appellant who bore the risk of loss or damage during the transit and of course, including the freight charges. 6. I note that in a number of decisions involving almost identical facts, this Bench has remitted the issue to the file of the Adjudicating Authority to consider and apply the decisions of the Hon ble Supreme Court in the cases of M/s. Roofit Industries Ltd. (supra), M/s. Ultra Tech Cement Ltd. (supra) and the C.B.I.C. Circular (supra). 7. I also note that the decision of the Hon ble High Court of Rajasthan in the case of M/s. Mangalam Cement Ltd. (supra) relied upon by the Ld. AR for the Revenue is decided subsequent to the date of the C.B.I.C. Circular (supra), .....

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..... ioned three aspects and interest thereon is confirmed. However, the matter is remanded back to the Tribunal for consideration of the question of penalty to decide the same after hearing both the parties in accordance with law. We make it clear that we have not expressed anything on merits on the question of penalty. From the above, it is quite clear that the delivery on FOR destination basis was not even part of the substantial question framed and answered by the Hon ble High Court. 8. It is undisputed that the decision of the Hon ble Apex Court in the case of M/s. Ultra Tech Cement Ltd. (supra) covers even the post-amendment period, which is binding on all lower authorities. However, as the issue in the case on hand involves delivery on FO .....

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