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TMI Blog2014 (8) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty paid on input goods as well as on input service. Rule 2(l) of the Rules provides 'input services' to mean, apart from other things, the service used by the manufacturer for clearance of the final product upto the place of removal. It further clarifies that input service includes an outward transportation upto the place of removal - There is no provision in the Act or in the Rules or in any circular issued by the Board of Central Excise and Customs, New Delhi (the Board) to hold that in case the duty is charged on the specified rate, then the place of removal will be factory gate. The matter is sent back to the Commissioner-Raipur to re-determine the question as to what is the place of removal: whether it is factory gate of the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th interest be not imposed. It was further provided in the notice to show cause as to why the period be not extended to January 2005 under the proviso to section 11A of the Central Excise Act, 1944 (the Act). This show cause notice has ultimately given rise to Tax Case No. 09 of 2014. 4. The Commissioner-Raipur also issued another notice dated 03.05.2010 asking the Assessee to show cause why the similarly availed Cenvat credit for the period April 2009 to March, 2010 be not reversed. This show cause notice has ultimately given rise to Tax Case No. 08 of 2014. 5. The aforesaid two show cause notices were decided on 11.11.2009 and 03.10.2011 by the Commissioner-Raipur confirming the notices on the ground that the service tax paid on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal- 15 of 2014) before the Punjab and Haryana High Court in respect of the order of the Tribunal arising in the appeal from Punjab. 10. The two tax cases filed by the Assessee before this court were admitted on 10.04.2014 on the following two questions of law: (i) Whether in the case, where the rate of duty is specific, the place of removal would be factory gate or the customer premises. (ii) Whether the authorities below have confirmed the demand after disallowing the credit on an issue, which was not proposed in the show-cause notice. 11. The Department has also filed Tax Case- 23 of 2014 against the first finding recorded by the Tribunal. This tax case was admitted on 19.06.2014 on the following question of law: 'W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 37 of the Act is titled as 'Power of Central Government to make rules'. It empowers the central government to make rules. 19. Sub section (1) of section 37 {37(1)} of the Act empowers the central government to make rules to carry into effect the purposes of the Act. Sub section (2) of section 37 {37(2)} of the Act empowers the central government to make rules in respect of particular subject. It is without prejudice to the powers conferred under section 37(1) of the Act. 20. Clause (xiva) of section 37(2) of the Act empowers the central government to frame the rules for giving credit on the input goods for manufacture of excisable goods. 21. Clause (xivaa) of section 37(2) of the Act empowers the central government to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut services' to mean, apart from other things, the service used by the manufacturer for clearance of the final product upto the place of removal. It further clarifies that input service includes an outward transportation upto the place of removal. 25. In this case, the Tribunal has held that in case where the excise duty is charged on the specified rate, then the place of removal is the gate of the factory. It has been held as presumption of law. 26. There is no provision in the Act or in the Rules or in any circular issued by the Board of Central Excise and Customs, New Delhi (the Board) to hold that in case the duty is charged on the specified rate, then the place of removal will be factory gate. 27. If the legislature or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the goods, upto destination might be available for taking cenvat credit.' 30. In our opinion, it is to be decided on the facts and circumstances of each case as to what is the place of removal. 31. In view of above, the two tax cases namely Tax Case- 08 and 09 of 2014 filed by the Assessee are partly allowed. The matter is sent back to the Commissioner-Raipur to re-determine the question as to what is the place of removal: whether it is factory gate of the Assessee; or it is the premises of the consumer. In case it is held that the place of removal is the premises of the consumer, then the Assessee will be entitled to take the Cenvat credit on such service as it will be deemed to be input service. 32. It is hereby clarifie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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