TMI Blog2020 (3) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... COMMON ORAL ORDER (PER : HONOURABLE MR. BHARGAV D. KARIA) 1.These Tax Appeals are filed under Section 35G of the Central Excise Act, 1944 by the Revenue and are directed against the order No.A/10373/2019 dated 25th February 2019 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zone Bench, Ahmedabad in Appeals Nos.E/11098/2015, E/10271/2015 DB and E/11326/2017 DB respectively. 2 The Revenue has proposed the following question as substantial question of law: (i) Whether in the facts and circumstances of the case, was the Tribunal right in law in allowing the appeal of the respondent to avail Cenvat credit of service tax on outward transportation for the period 2009 10 to 2013-14? 3. The short controversy, which arises in these appeals, is with regard to denial of Cenvat Credit for the period from 2009 10 to 201314 of service tax paid on outward transportation of goods by the respondents. 4. The show cause notice was issued for denial of said Cenvat Credit which was confirmed by the adjudicating authority holding that the credit of GTA (Goods Transport Agency) is available on input service upto the place of removal after 1st April 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observation of Honb le Count in para 16 in this regard is significant as reproduced below: 16. It will thus be seen where the price at which goods are ordinarily sold by the assessee is different for different places of removal, then each such price shall be deemed to be normal value thereof, Sub clause (b) (iii) is very important and makes it clear that a depot, the 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 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 manufacturers 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 subsection. The place or premises from where excisable ˙goods are to be sold can only be manufacturer s premises or premises referable te the manufacturer. If w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to the buyer, any expenditure incurred thereafter has to be on buyer s account and cannot be a component which would be included while ascertaining the valuation of the goods manufactured by the buyer. That is the plain meaning Which has to be assigned to Section 4 read with Valuation Rules. 13. In the present case, we find that most of the orders placed Withthe respondent assessee were 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 order, 100% payment for the supplies was to be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estination 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 basis of provision under Cenvat Credit Rules itself, we need not to deal this aspect hence, the issue related to this fact left open. As regard the submission made by Ld. Counsel that they have been operating as per the guideline given in the Circular dated 22.12.2014 and 23.08.2007 which was operative at the relevant time, therefore, even though the same were withdrawn w.e.f. 08.06.2018, but at the relevant time the benefit of said Circular shall be available. We find force in the argument of the Ld. Counsel as the la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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