9911796707
TMI Blog2022 (1) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... artment formed an opinion that the factory of the appellant is the place of removal as the appellants are not having any depots or any warehouse and the procedure of sale of goods by the appellant is completely at the factory gate. Accordingly, the availment of CENVAT Credit on Service tax paid on outward transportation of the goods by the appellant is opined to be incorrect. Resultantly a Show Cause Notice No. 2821 dated 20.11.2017 was served upon the appellant proposing to recover the CENVAT Credit on GTA service tax of Rs. 5,74,354/- alleging the same to have wrongly claimed. Imposition of penalty was also proposed upon the appellant. The proposal was rejected by Order in Original No. 01/2019-20 dated 18.09.2019. Department filed an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposed demand of Show cause notice. However, Commissioner (Appeals) has failed to appreciate the aforementioned fact of the present case. Learned Counsel has relied upon the decision of Hon'ble Apex Court in the case of Commissioner vs Managalam Cement Ltd. reported as [2018 (16) GSTL J 168 (SC)]. The learned Counsel has laid emphasis on the purchase orders and on the terms and conditions mentioned in the said order. All these purchase orders not only supply the goods on FOR basis with the entitlement of buyers to inspect the goods and to accept / nore subject to said inspection. The order is therefore prayed to be set aside and appeal is prayed to be allowed. 5. To rebut the submissions, learned Departmental Representative impressed upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry; security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal; but excludes,- (A) service portion in the execution of a works contract and construction services including service listed under clause (b) ofsection 66E of the Finance Act (hereinafter referred as specified services), in so far as they are used for- (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place or premises of production or manufacture of the excisable goods; (ii) A warehouse or any other place of premises wherein the excisable goods have been permitted to be stored without payment of duty; (iii) A depot, 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." 9. The Hon‟ble Apex Court in the case of M/s. Escorts JCB Ltd. & others Vs. Commissioner of Central Excise Delhi, II (2003) 1 SCC 281 has held that the place of removal has to be determined with reference to the point of "sale‟. Section 19 of Sale of Goods Act says that the "property in goods stands transferred only when it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture 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." 11. Coming to the facts of the present case I observe that the goods are being cleared by the appellants to their buyers on FOR basis and all liabilities in respect of transportation of goods or even damage to goods were on account of the appellants/manufacturer. It is the appellants who were liable for safe delivery of goods up to their customer's door steps. Thus, present becomes the case were the service of GTA was availed for the goods to be supplied to buyers at their do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sale got concluded. Hence as per Section 4(iii) of Central Excise Act, 1944 place of removal, in the present case was buyer's place. 13. Hon'ble Apex Court earlier in the case of CCE & CU Vs. Rooflt Industries Ltd. (supra). Though there stand subsequent decision of Apex Court viz. in the case of CCE vs. Ultra Tech Cement Ltd. [2018 (2) SCC 721] but as apparent that the said decision is being directed to be appreciated in terms of facts of individual case. Hon'ble Apex Court in the case of Mangalam Cement vs. CCE [2020 (32) GSTL 156 (SC)] has held that High Courts as well as Tribunal ought to have rely on relevant facts and contentions raised in the said appeal on its merits and ought not to have decide the same by the general observation ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
