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TMI Blog2012 (8) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 4 (3) (c) would be of no relevance. As the places on removal from where the duty is liable to be paid which in this case, is the factory gate of Sonadih factory, as the duty on clinker becomes payable at the time of removal from Sonadih factory therefore, the GTA service for transportation of clinker from Sonadih factory to Nipania depot, having been availed after the removal of the clinker from the factors, is 'prime facie' not covered by the definition of 'input service' - against assessee. - 2962 of 2011 - 1061/2012-EX(BR) - Dated:- 10-7-2012 - Ajit Bharihoke, Rakesh Kumar, JJ. For Appellant: Shri Abhratosh Majumdar, Adv. For Respondent: Shri S R Meena, AR (DR) Per: Rakesh Kumar: The appellant manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1AC of Central Excise Act, 1944. 1.1 The above show cause notice was adjudicated by the Commissioner vide order-in-original dated 25/8/11 by which - (a) while Cenvat credit demand of Rs.22,50,525/- in respect of transportation of cement from Sonadih factory to the sales depot was dropped, the Cenvat credit demand of Rs.38,54,409/- in respect of transportation of clinker from Sonadih factory to Clinker depot at Nipania railway siding was confirmed alongwith interest under Section 11AB; and (b) penalty of Rs.38,54,409/- was imposed on the appellant under Rule 15 of Cenvat Credit Rules, 2002. 1.2 Against the above order of the Commissioner, this appeal alongwith the stay application has been filed. 2. Heard both the sides in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery thereof may be stayed till the disposal of the appeal. 4. Shri S.R. Meena, the learned Senior Departmental Representative, opposed the stay application and reiterating the findings of the Commissioner in the impugned order, emphasised that since the clinker has been cleared by the appellant unit on stock transfer basis for captive use of its sister unit at Jojobera, the place of removal of the cement would be the factory gate, not the factory premises of Jojobera cement plant, and that the GTA service availed for transportation of clinker from the factory to depot at Nipania railway siding is not covered by the definition of 'input service'. He, therefore, pleaded that this is not a case for waiver. 5. We have carefully considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is in this context that sub-Section (3) (c) of Section 4 defines the "place of removal", as the assessable value is the "transaction value", as defined under Section 4 (3) (d) at the "time and place of removal". In fact sub-Section (3) of Section 4 defines various terms including "place of removal" for the purpose of this Section, i.e. Section 4 which is applicable only when the rate of duty is ad-valorem. Though in terms of Rule 2 (t) of Central Credit Rules, 2004, the words and expressions not defined in these rules but defined in the Central Excise Act, 1944 or Finance Act, 1994 shall have meaning respectively assigned to them in those Acts, it is doubtful whether the definition of 'place of removal' in Section 4 (3) (c), which is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be adopted for Cenvat Credit Rules only in those cases where the rate of duty is ad-vaiorem and the duty is charged on value determined under Section 4. In this case, the duty on the goods - clinker is at specific rate and hence we are of prima facie view that the definition of "place of removal" in Section 4 (3) (c) would be of no relevance. We are of prima facie view that in this case, the "place of removal" would be the "place of removal" for the purpose of Rule 4 of Central Excise Rules, i.e. the places on removal from where the duty is liable to be paid, which in this case, is the factory gate of Sonadih factory, as the duty on clinker becomes payable at the time of removal from Sonadih factory. Therefore, the GTA service for transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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