TMI Blog2022 (5) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Accountants Certificate. There is no document on record produced by the department to falsify both these documents. The property in the goods continued to remain with the appellant/the manufacturer till those goods were delivered at the door step of the appellant. Hence, point of sale in the given circumstances is apparently the door step of the consumer - in appellant s own case in M/S PENSOL INDUSTRIES LIMITED VERSUS COMMISSIONER, CGST CENTRAL EXCISE [ 2019 (5) TMI 1618 - CESTAT NEW DELHI] this Tribunal has already held the outward freight in case of sale on FOR basis to be an amount paid towards an eligible import service. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 50330 of 2021 [SM] - FINAL ORDER N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned Counsel for the appellant and Ms. Tamanna Alam, learned DR for the department. 3. It is submitted by the learned Counsel for the appellant that the goods of the appellant were remained owned by the appellant themselves till they were delivered to their customers at their door steps, the delivery being on FOR basis. The learned Counsel has brought to the notice the insurance policy obtained by the appellant from Bajaj Allianz General Insurance Company Limited for emphasizing that the cost of insurance has been borne by the appellant till their goods were actually delivered to their distributors or dealers or even to their customers. It has specifically been mentioned in the said policy itself that all claims, if any, shall be pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile rebutting the submissions learned Counsel has laid emphasis upon the findings of Commissioner (Appeals) in Para 8 of the order under Challenge. It is submitted that Hon ble Apex Court in the case of Ispat Industreis (supra) has clarified that as per sub clause (b) (iii) of Rule 2(l) of Cenvat Credity Rules, 2004 what is important to note is that each of the premises mentioned therein are referable only to the manufacturer and not to the buyer of excisable goods. Hence the expression any other place or premises refers only to a manufacturer s place. Learned Counsel has impressed upon that there is no infirmity while applying the aforesaid adjudication to the facts and circumstances of the present case as allegedly been committed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the property in the goods passes on to the buyer. From the documents as already discussed above, it is clear that the property in the goods continued to remain with the appellant/the manufacturer till those goods were delivered at the door step of the appellant. Hence, point of sale in the given circumstances is apparently the door step of the consumer. The situation as is the fact for the present case has been clearly dealt with by the Hon ble Apex Court itself in the case of Ultra Tech Cement Ltd. In Civil Appeal No. 11261 of 2016 decided on 01.02.2018. Earlier also the Hon ble Apex court in the CCE Vs. M/s. Roofit Industires Limited (supra) and another case of CCE , Mumbai-III Vs. Emco Ltd. reported as 2015 (322) ELT 394 (SC) has cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oading, 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 by the purchaser after the receipt and verification of material. Thus, there was no money given earlier by the buyer to the assessee and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the order passed by the Adjudicating Authority. 7. The department also after relying upon all above quoted decisions of Hon ble Apex Court has issued a Circural No. 1065/4/2018 dated 8th June, 2018 and has held as follows: The principle referred to in para 3 above would apply to all situations except where the contract for sale is FOR contract in the circumstances identical to the judgment in the case of CCE, Mumbai-III vs. Emco Ltd 2015 (322) ELT 394 (SC) and CCE vs M/s Roofit Industries Ltd 2015 (319) ELT 221 (SC). To summarise, in the case of FOR destination sale such as M/s. Emco Ltd and M/s Roofit Industries where the ownership, risk in transit, remained with the seller till goods are accepted by buyer on delivery and til ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
