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TMI Blog2010 (1) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the decision of the Larger Bench in the matter of ABB Ltd. v. Commissioner of Central Excise & Service Tax, Bangalore, reported in 2009 (15) S.T.R. 23 (LB-T), has been stayed by the Karnataka High Court. 2. The records also disclose a submission in writing on behalf of the appellants filed in the Court on 25th May, 2009 that the Tribunal may decide the appeal on the basis of merits of the case. 3. In the circumstances, I have gone through the entire records with the assistance of the learned DR and have also heard the learned DR. 4. The appellants are the manufacturers of goods falling under Chapter 73 of the First Schedule to the Central Excise Tariff Act, 1985. They availed the Cenvat credit facilities under the Cenvat Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utward services amounting to Rs. 40,274/-. The Commissioner (Appeals) also reduced the penalty to Rs. 10,000/-. Hence the present appeal. 5. In the facts and circumstances of the case, the only point which arises for consideration is, whether the Cenvat credit of Service Tax on services provided by Goods Transport Operator pertaining to the transportation of the finished goods upto the customers' place is admissible or not. 6. The learned DR taking me to the impugned order submitted that, the Commissioner (Appeals) has dealt with the point of law relevant for the decision in detail, however, before applying the law to the matter in hand, the Commissioner (Appeals) has not dealt with the factual aspects of the matter. Indeed, bare perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the case about the terms of the contract between the manufacturer and the buyer in relation to the sale of the product. In this regard, as observed by the Hon'ble High Court of Punjab & Haryana, it would be necessary to take note of the said Circular and particularly of the following para therefrom : "...............However, there may be situations where the manufacturer/consignor may claim that the sale has taken place at the destination point because in terms of the sale contract/agreement (i) the ownership of goods and the property in the goods remained with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true that the said decision is under challenge before the Karnataka High Court and therein the decision has been stayed by the Karnataka High Court. Obviously, the said decision has no applicability to the matter in hand nor it would be an hurdle to dispose of the matter in hand. Rather, considering the decision of the Punjab & Haryana High Court, the authorities will have to decide each matter based on the facts of each case. 10. In the result, therefore, the appeal partly succeeds as the impugned order is liable to be set aside and the matter to be remanded to the Commissioner (Appeals) to ascertain the entitlement of Cenvat credit based on the facts of the case and bearing in mind the law laid down by the Punjab & Haryana High Court, re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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