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TMI Blog2013 (9) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... es payable at the time of removal. 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. Prima facie case is against the assessee - directed to make pre-deposit of entire demand of cenvat credit - stay granted in respect of interest and penalty. - E/2958/2011 and Cross Objection No. E/CO/92/2012 - Stay Order No. 1063/2012-EX(BR)(PB) - Dated:- 10-7-2012 - Ajit Bharihoke and Shri Rakesh Kumar, JJ. Shri Abhratosh Majumdar, Advocate, for the Appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. 1.1 The above show cause notice was adjudicated by the Commissioner vide order-in-original dated 26-4-2011 by which - (a) while Cenvat credit demand of Rs. 23,55,464/- in respect of transportation of cement from Sonadih factory to the sales depot was dropped, the Cenvat credit demand of Rs. 55,50,354/- 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. 55,50,334/- was imposed on the appellant under Rule 15 of Cenvat Credit Rules, 2002. 1.2 Against the above order of the Commissioner, this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cenvat credit demand, interest and penalty may be waived for hearing of the appeal and recovery 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessable value on which duty at ad valorem rate is to be calculated has to be determined. 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 Cenvat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 3(2). In our view, the definition of place of removal in Section 4(3)(c) can be adopted for Cenvat Credit Rules only in those cases where the rate of duty is ad valorem 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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