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TMI Blog2023 (11) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) I hereby confirm the demand of CENVAT Credit amounting to Rs 1,79,93,500.00 (Rupees One Crore Seventy Nine Lac Ninety Three Thousand Five Hundred only)(including Education Cess and Higher Secondary Education Cess) from M/s Hindustan Zinc Limited, situated at Plot No 2D-1, IIE, SIDCUL Haridwar, the M/s HZL under Rule 14 of the CENVAT Credit Rules, 2004 read with proviso to Section 11A/ Section 11A(4) of Central Excise Act, 1944, taken on outward freight during the period from August 2008 to March 20012. (ii) I hereby confirm the demand of interest, at appropriate rate, on above said amount of CENVAT Credit of Rs 1,79,93,500.00 from M/s HZL under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 11AB/ 11AA of Central Excise Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat Credit Rules, 2004, and, therefore, did not appear to be admissible as Cenvat credit. Hence, the credit so availed by the assessee on service tax paid on outward transportation of their goods appeared inadmissible in terms of Rule 3 (1) read with Rule 2 (l) of the Cenvat Credit Rules, 2004. 2.4 A show cause notice dated 12.10.2012 was issued to them asking them to show cause as to why: a. In admissible Cenvat Credit amounting to Rs 1,79,93,500.00 (Rupees One Crore Seventy Nine Lac Ninety Three Thousand Five Hundred only)(including Education Cess and Higher Secondary Education Cess) taken on outward freight during the period from August 2008 to March 20012 should not be demanded and recovered from them under Rule 14 of the CENVAT C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selling the goods on FOR basis, i.e. freight was paid by them till the place of delivery and they claimed that ownership got transferred to buyer at the destination only. Accordingly, they argue that if goods are sold at depot then depot will be the place of removal, if the goods are sold at destination either from factory or depot, then such destination would be place of removal. M/s HZL pointed out that the definition of place of removal prescribes that point to be place of removal from where the excisable goods are sold. 29. In this context, I find that as the sales are on FOR basis, the excise duty is to be paid on a transaction value including freight, which M/s HZL has done as per legal requirement under Excise Law. However, the fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 8.2 of the circular no. 97/8/2007-CX dated 23.08.2007 are also omitted from the date of issue of this circular. 3. General Principle: As regards determination of 'place of removal', in general the principle laid by Hon'ble Supreme Court in the case of CCE vs Ispat Industries Ltd 2015(324) ELT670 (SC) may be applied. Apex Court, in this case has upheld the principle laid down in M/s Escorts JCB (Supra)to the extent that 'place of removal' is required to be determined with reference to 'point of sale' with the condition that place of removal (premises) is to be referred with reference to the premises of the manufacturer. The observation of Hon'ble Court in para 16 in this regard is significant as reproduced below "16. It will th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 till such time of delivery, seller alone remained the owner of goods retaining right of disposal, benefit has been extended by the Apex Court on the basis of facts of the cases. (ii) Clearance for export of goods by a manufacturer shall continue to be dealt in terms of Circular no. 999/6/2015-CX dated 28.02.2015 as the judgments cited above did not deal with issue of export of goods. In these cases otherwise also the buyer is located outside India. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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