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TMI Blog2011 (2) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... oods on board the ship - Decided in favor of the assessee - E/629/10 - 224/11 - Dated:- 3-2-2011 - M Veeraiyan, J. For Appellant: Shri T H Rao, SDR For Respondent: None (Adj. Request) Per: M Veeraiyan: Appeal No. E/629/10 is filed by the department against the order of the Commissioner (Appeals) No. 290/2010 dated 22.7.2010. Cross-objection No. 4/11 is connected to this appeal and the same is basically in support of the order of the Commissioner (Appeals). 2. None appeared for the respondents. There is a request for adjournment. After hearing the learned SDR and in view of the proposed order, it is felt that it is not necessary to accede to the request for adjournment. 3. The relevant facts, in brief, are that the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) I hold that the assessees are liable to pay interest in respect of credit wrongly taken at (i) above under Section 11AB of Central Excise Act, 1944 read with Rule 14 of the CENVAT Credit Rules, 2004. (iii) I impose penalty of Rs. 4,12,990/- on them under Rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. On appeal by the party, the Commissioner (Appeals) has set aside the order of the original authority. 4. Learned SDR takes me through the grounds of appeals. He submits that the decision of the Larger Bench of the Tribunal in the case of ABB Ltd. Vs Commissioner of Central Excise, Bangalore 2009 (15) STR 23 (Tri-LB) has been appealed against before the Hon'ble High Court of Karnataka a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same to the buyer and, therefore, they satisfy the conditions stipulated by the Board in their Circular No. 97/8/07-STdated 23.8.2007 (para 8.2). The Commissioner (Appeals) has accepted this view. He has also relied on the decision of the Hon'ble High Court of Punjab Haryana in the case of Ambuja Cement Ltd. Vs. Union of India 2009 (236) ELT 431 (P H). 5.3 At this stage, it would be appropriate to reproduce the relevant portions of Board's instructions dated 23.8.2007, which are as under:- In this connection, the phrase 'place of removal' needs determination taking into account the facts of an individual case and the applicable provisions. The phrase 'place of removal' has not been defined in CENVAT Credit Rules. In terms of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under section 2 of the Central Excise Act, 1944 as also in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y service used by the manufacturer whether directly or indirectly and also includes, inter alia, services used in relation to inward transportation of inputs or export goods and outward transportation up to the place of removal. It has also remain un-controverted that for transportation purposes insurance cover has also been taken by the appellant which further shows that the ownership of the goods and the property in the goods has not been transferred to the seller till the delivery of the goods in acceptable condition to the purchaser at his door step. Accordingly, even the second condition that the seller has to bear the risk of loss or damage to the goods during transit to the destination stand fulfilled. 13. The third condition t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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