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TMI Blog2013 (12) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... ing removal of excisable goods would depend upon the place of removal as per the definition of ‘place of removal’ under section 4 of the Central Excise Act, 1944 - the credit on the outward freight could be admissible provided the respondent fulfill all the conditions laid down in Boards Circular. Power to remand back by the Commissioner (Appeals) – Held that:- Following MIL INDIA LTD. Versus COMMISSIONER OF C. EX., NOIDA [2007 (3) TMI 8 - SUPREME COURT OF INDIA] and Commissioner of Central Excise, Noida v. Orient Crafts Ltd. [2010 (11) TMI 178 - CESTAT, DELHI] - The Commissioner (Appeals) has no power to remand the case back to the adjudicating authority after deletion of that power from Section 35A (3) of the Central Excise Act, 1944 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.10,000/-. The second show-cause notice dated 14.02.08 was decided vide O/O No.08/AC/Dgp-I/08-09 dated 30.06.08 disallowing credit of Rs.2,30,342/- along with interest at the appropriate rate and equal amount of penalty. 2.2 The Assistant Commissioner has purportedly relied upon the decision of the Tribunal in the case of Gujarat Ambuja Cement Ltd. Vs. CCEx. Ludhiana and decisions which have followed the same. It was held in this case that the transportation of goods or final product from the factory by an assessee to the customer’s place is not clearance upto the place of removal as is required in terms of Rule 2 (l)(ii) in Cenvat Credit Rules, 2004 and hence availment of cenvat credit on freight in respect thereof does not arise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases, where the excisable goods were delivered at the customer’s premises. The other issue is whether the Commissioner (Appeals) has power to remand the case back to the lower adjudicating authority. 7. Regarding eligibility of credit, I find that the dispute relates to the period 2007-08 (upto February, 2008), it is seen from the definition of input service provided under Rule 2 (l) of Cenvat Credit Rules, 2004 that ‘input service’ means any service (i) used by a provider of taxable service for providing an output service, or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacturer of final products and clearance of final products (from) the place of remaoval and includes…………….outward transporta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 by amendment made by the Finance Act, 2001. The Tribunal in the case of Commissioner of Central Excise, Noida v. Orient Crafts Ltd. reported in 2011 (21) S.T.R. 302 (Tri.-Del.), held that : It is settled law that the Commissioner (Appeals) dealing with the appeals under Central Excise Act, 1944 lacks jurisdiction to remand the matter to the Adjudicating Authority. The law provides that in case the Commissioner (Appeals) finds any infirmity in the order passed by the Adjudicating Authority or the order is found to be unsustainable, the Commissioner (Appeals) is certainly entitled to set aside such order and thereupon pass an appropriate order on merits by himself but not to remand the matter. Being so, Commissioner (Appeals) dealing w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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