2015 (10) TMI 2521 - AT - Central Excise

Cenvat credit - Service tax paid on transport charges for transportation of cement from the factory to the premises of the buyers - appellant were paying duty on basis of retail sale price preprinted on the cement bags as per notification number 4/2006-CE - goods are sold on FOR basis on the door step of the buyer - Held that - in the facts of this case the place of delivery of goods is the customer s premises and the freight is borne by the appellant manufacturer. The place of removal has to be held at the customer s premises This position has been clarified by CBEC in the Circular No. ST/137/85/2007-CX-4 dated 23/8/2007. Even after the amendment in the definition of input services with effect from 1/4/2008 replacing the words from the place of removal by up to the place of removal the place of removal gets extended up to the buyer s premises in the case of FOR-destination sales and as such the said amendment does not make any difference where the sales are on FOR-destination basis. In the case of destination sale the ownership and property is transferred when the manufacturer delivered the goods to the buyer at his premises. Accordingly I hold that Cenvat Credit of service tax is available to the appellant on outward transport for FOR Sales made to the buyers. - Decided in favour of appellant with consequential relief

Summary

Issues:
- Interpretation of "place of removal" in relation to Cenvat Credit on transport charges for cement sold FOR-destination.
- Applicability of CBEC circular on defining "place of removal."
- Consideration of ownership and risk in determining "place of removal."
- Impact of amendments in the definition of "input services" on determining "place of removal."

Analysis:

The primary issue in this case revolves around the interpretation of the "place of removal" concerning the entitlement to Cenvat Credit on service tax paid on transport charges for cement sold FOR-destination. The appellant contended that the door step of the buyer constitutes the "place of removal" as per Section 4(2)(c) of the Central Excise Act, supported by a CBEC circular. The dispute arose as the revenue argued that the "place of removal" is the factory gate. The Commissioner (Appeals) rejected the appeal, emphasizing that in this scenario, the customer's premises, being the ultimate destination, does not align with the definition under the Act.

Furthermore, the consideration of ownership and risk in determining the "place of removal" played a crucial role in the decision. The appellant provided a certificate from a chartered accountant, asserting that the goods were sold on FOR-destination basis, and the freight charges were integral to the price of the goods. This certification was crucial in establishing the ownership of goods until delivery at the buyer's door step, influencing the determination of the "place of removal."

The impact of amendments in the definition of "input services" was also deliberated upon. Despite the substitution of "from the place of removal" with "up to the place of removal" in 2008 and 2011, the Tribunal held that in FOR-destination sales, the place of removal extends up to the buyer's premises. This interpretation was supported by a CBEC circular, reinforcing the position that in destination sales, ownership and property transfer upon delivery to the buyer at their premises.

Ultimately, the Tribunal allowed the appeal, granting the appellant the entitlement to Cenvat Credit on outward transport for FOR Sales made to the buyers. The decision was grounded in the understanding that the "place of removal" in such transactions extends to the customer's premises, aligning with the specific nature of FOR-destination sales and the transfer of ownership and property upon delivery to the buyer.