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TMI Blog2024 (12) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... and penalty has been passed. 2. The appellant is engaged in the business of manufacturing motor cycles, scooters and spare parts and availed the facility of CENVAT credit under the Cenvat Credit Rules, 2004 [the 2004 Credit Rules]. A show cause notice dated 14.09.2015 was issued to the appellant proposing to deny CENVAT credit on the input service for the period April 2010 to March 2015 for the reason that the direct sale points in Kolkata cannot be considered as place of removal for the goods manufactured in the factory premises. The appellant filed a reply and denied the allegations made in the show cause notice. 3. The Commissioner, by the aforesaid order dated 31.10.2016, held that the appellant was not entitled to avail CENVAT credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m where the excisable goods are to be sold after their clearance from the factory. 15.5 As per the facts on record, such direct shop at Kolkata is neither the factory premises nor a warehouse wherein the goods have been permitted to be stored without payment of duty; nor is a depot or a premise of a consignment agent as the said M/s Frostees Export India Pvt. Ltd. has, at no juncture, been said to be a consignment agent of the Assessee. Hence, in such a situation, such direct shop at Kolkata cannot be considered as the "place of removal" for the Assessee without cogent evidences and certification. 15.6 Moreover, the Assessee has also failed to bring it on record as to whether the said premises, i.e. direct shop at Kolkata is a registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the subsequent period from 2015 - 2017. The said decision is M/s India Yamaha Motor Pvt. Ltd. versus Commissioner of Central Excise and CGST, Gautam Budh Nagar [Service Tax Appeal No. 70219 of 2020 decided on 04.10.2023]. 5. Shri Vivek Kumar Jain, learned authorized representative appearing for the department, however, supported the impugned order and placed various paragraphs to contend that the place of removal would be the factory premises and not the direct shop at Kolkata. 6. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 7. The issue as to whether the factory premises of the appellant or the direct shop at Kolkata w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier order states that direct shop at Kolkata belongs to M/s Frostees Export India Pvt. Ltd. and for that reason it cannot be place of removal while doing so Commissioner (Appeals) has failed to examine the basic question whether the goods were sold by the appellant from the direct shop which may be owned by M/s Frostees Export India Pvt. Ltd. or any other person. Once it is established that the appellant were paying duty on the value at which the bikes were sold from the direct shop at Kolkata then there cannot be any reason for not allowing the Cenvat Credit in respect of the services received at depot". 8. The Allahabad Bench then considered the decision of the Supreme Court in MRF Ltd. [1997 (92) E.L.T. 3 (S.C.)] and the Circular No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in respect of the premises from where their shop is operating in Kolkata. 4.15 Thus, there is no justification for not allowing the credit in respect of input services received at the direct shop in Kolkata from where the goods are finally sold by the appellant after clearance from the factory. There is no merit in the impugned order and the same is set aside. As the demand for duty is set aside the demand for interest and penalty imposed is also set aside". (emphasis supplied) 10. The factual position in the appeal decided by the Allahabad Bench and the present appeal is identical. In fact, the appellant in both the appeals is India Yamaha Motor Private Limited. 11. We see no good reason to take a different view from the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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