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TMI Blog2014 (7) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable for determining the duty leviable on the goods and the definition of ‘place of removal’ in Section 4 would not be applicable for the purpose of Cenvat Credit Rules, 2004 when the final product is chargeable to duty at a specific rate or of at ad valorem rate, on the value determined under Section 4A or on tariff value fixed under Section 3(2). Prima facie when the rate of duty on the final product is specific, the definition of ‘place of removal’, as given in Section 4, which is only for the purpose of this section, cannot be adopted for the purpose of Cenvat Credit Rules and in such cases, the place of removal would be the place on removal from which duty is payable on the goods, which in this case, would be the factory gate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant s sales were not on FOR destination and therefor, they would not be eligible for Cenvat credit in respect of outward transportation upto the customers premises. On this basis, a show cause notice dated 15-10-2009 was issued to the appellant for recovery of allegedly wrongly taken Cenvat credit of ₹ 74,73,578/- for the period from August 2007 to June 2009 along with interest thereon and also imposition of penalty on them under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of the Act. Show cause notice was adjudicated by the Commissioner vide order-in-original dated 15-12-2011 by which the above Cenvat credit demand was confirmed against the appellant along with interest and besides this, penalty of equal amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cenvat credit, in respect of customs freight upto the place of removal is admissible even if the duty on the goods is payable at specific rate or on value determined under Section 4A, and that the Tribunal in the case of Palco Metals Co. v. C.C.E., Ahmedabad reported in 2012 (26) S.T.R. 429 = 2012 (280) E.L.T. 299 (Tribunal) has held that even after the amendment to Rule 2(l) with effect from 1-4-2008, in the cases where the sale are on FOR destination basis, the customer s premises would have to be treated as place of removal and Cenvat credit in respect of GTA service availed for transportation upto the place of customer s premises would be admissible. The Ld. counsel further submitted that earlier the Tribunal in the Appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. C.C.E., Raipur reported in 2012-TIOL-1025-CESTAT-DEL = 2012 (285) E.L.T. 390 (Tribunal), that same view has been expressed by the Hon ble Karnataka High Court in the case of C.C.E., Bangalore v. ABB reported in 2011 (23) S.T.R. 97 (Kar.); and that in view of this, the appellant do not have a prima facie case and hence this is not a fit case for waiver from the requirement of pre-deposit. 6. We have considered the rival submissions. There is no dispute about the fact that cement during the period of dispute attracted duty at specific rate and as such the provisions of Section 4 of Central Excise Act, 1944 would not be applicable. In terms of Rule 2(t) of Cenvat Credit Rules, 2004 in respect of the terms which are not defined in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixed under Section 3(2). (1) As is clear from sub-section (3) of Section 4, the definition of various terms including place of removal , as given in this sub-section is for the purpose of this section only . Rule 2(t) of Cenvat Credit Rules, 2004 states that the words and expression used in these Rules and not defined, but defined in the Excise Act or the Finance Act, shall have meaning assigned to them in those Acts. While the term place of removal is not defined in the Finance Act, 1994, its definition in the Central Excise Act, 1944 as given in Section 4 is for the purpose of this section only i.e. for determining the assessable value of the goods when the duty is chargeable at an ad valorem rate. We are of prima facie view that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcular No. 137/3/2006-CX., dated 2-2-2006 cited by the ld. counsel for the Appellant does not appear to be correct. (3) If the Appellant s plea based on the Board s Circular No. 137/3/2006-CX., dated 2-2-2006 is accepted, it will give rise to a situation where whole the duty on the final product being chargeable at specific rate, is fixed, the cenvat credit of service tax on outward freight which can be utilized for payment of duty, is variable, depending upon the location of the customer s premises. This should not happen in tax system which has the character of value added tax. (4) Hon ble Karnataka High Court also in paras 15 and 16 of its judgment in the case of C.C.E., Bangalore v. ABB Ltd. reported in 2011 (23) S.T.R. 97 (Kar.) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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