TMI Blog2019 (11) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court judgment in the case of Ultratech Cement [ 2018 (7) TMI 1574 - SC ORDER ] allowed the credit. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 11684 of 2018, Excise Appeal No. 11685 of 2018 - FINAL ORDER NO. A/ 12195-12196 /2019 - Dated:- 8-11-2019 - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) Sh. Dhaval Shah (Advocate) for Appellant Sh. L. Patra, Assistant Commissioner (AR) for Respondent ORDER PER: RAMESH NAIR The issue involved is that whether the appellant is entitled for Cenvat credit in respect of GTA service used for removal of goods wherein the sale is on FOR basis. 2. Shri Dhaval Shah, Learned Counsel appearing on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r considering the Hon ble Supreme Court judgment in the case of Ultratech Cement 2018 (13) GSTL J101(SC) allowed the credit. The relevant portion of the Ultratech cement judgment passed by this Tribunal is reproduced below: 4. Heard both the sides and perused the records of the case. We find that the Appellant are clearing their goods on MRP basis in case of clearance from their depot/ stockists or to their customers and in case of sale to institutional consumers the goods are being cleared by them by adopting the valuation of the goods in terms of Section 4. The Appellants have annexed copies of excise invoice cum gate pass which shows that the prices are inclusive of freight and insurance and nothing extra has been charged. The g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble goods are to be sold after their clearance from the factory are all places of removal. What is important to note is that each of the premises is referable only the manufacturer and not to the buyer of excisable goods. The depot or the premises of the consignment agent of the manufacturer are obviously places which are referable to the manufacturer. Even the expression any other place of premises refers only to a manufacturer s place or premises because such place or premises is to be stated to be where excisable goods are to be sold . These are key words of the sub-section. The place or premises from where excisable goods are to be sold can only be manufacturer s premises or premises referable to the manufacturer. If we were to accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce) to the goods till destination were borne by the Appellant, they are eligible for the credit of service tax paid by them on outward freight. In case of CCE CU Vs. Roofit Industries Ltd. 2015 (319) ELT 221 (SC) the Hon ble Apex Court held as under : 12. The principle of law, thus, is crystal clear. It is to be seen as to whether as to at what point of time sale is effected namely whether it is on factory gate or at a later point of time, i.e., when the delivery of the goods is effected to the buyer at his premises. This aspect is to be seen in the light of provisions of the Sale of Goods Act by applying the same to the facts of each case to determine as to when the ownership in the goods is transferred from the seller to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consideration was to pass on only after the receipt of the goods which was at the premises of the buyer. From the aforesaid, it would be manifest that 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. 14. The clear intent of the aforesaid purchase order was to transfer the property in goods to the buyer at the premises of the buyer when the goods are delivered and by virtue of Section 19 of Sale of Goods Act, the property in goods was transferred at that time only. Section 19 reads as under : 19. Property passed when intended to pass. - (1) Where there is a contract for the sale of specific or ascertained goods the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not go into the aspect of Point of sale or the FOR price destination issue. Hence the said judgment is not applicable in the facts of the present case. 6. As regards other judgments cited by rivals, though we have considered the same, but since, we have discussed above the most relevant apex court judgments, we need not to discuss each and every judgment. 7. As regard the issue raised by the appellant that the excise duty paid on the element of freight being more than the element of cenvat credit on the outward GTA, therefore, there should not be any demand. We find force in the argument of the appellant however, since we are deciding the issue on merit, the admissibility of the Cenvat Credit on outward GTA on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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