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TMI Blog2015 (9) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... o go into other issues such as limitation, etc., at this point of time, as the result of above exercise may have bearing on the same. - matter remanded back. - E/87565/2013-Mum - Final Order No. A/252/2014-WZB/(EB) - Dated:- 3-4-2014 - Shri S.S. Kang, Vice-President and P.K. Jain, Member (T) Shri M.H. Patil, Advocate, for the Appellant. Shri Shobha Ram, Commissioner (AR), for the Respondent. ORDER Brief facts of the case are that the appellant during the period February, 2007 to December, 2011 sold its manufactured goods in the following manner :- (a) At the factory gate, where the customer took delivery of the goods; (b) At the customer s premises, where Excise duty was discharged on the price of the goods and the freight payable for carriage of the goods from the factory to the customer s premises; and (c) Where the goods are said to be sold to the customer at its factory gate but agreed to be delivered at the customer s premises at pre-agreed freight. This freight is separately shown in the invoices issued to the customer. In this case the appellant had paid excise duty only on the price of the goods and not included therein the freight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, or a sub-distributor of such distributor; or (iv) they are so associated that they have interest, directly or indirectly, in the business of each other. Explanation. In this clause - (i) inter-connected undertakings shall have the meaning assigned to it in clause (g) of Section 2 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969); and (ii) relative shall have the meaning assigned to it in clause (41) of Section 2 of the Companies Act, 1956 (1 of 1956); (c) place of removal means - (i) a factory or any other place or premises of production or manufacture of the excisable goods; (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty; (iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory; from where such goods are removed; (cc) time of removal , in respect of the excisable goods removed from the place of removal referred to in sub-clause (iii) of clause (c), shall be deemed to be the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of valuable consideration paid or payable to a dealer for any sale made including any sum charged for anything done by the seller in respect of the goods at the time of or before delivery thereof, other than the cost of insurance for transit or of installation, when such cost is separately charged. The ld. advocate also stated that the position in many other States (e.g. Odisha, Gujarat, Haryana) is same but in some States, it is different e.g. U.P. VAT does not stipulate inclusion of freight for payment of VAT. Only in respect of the consignment which are delivered within Maharashtra, freight charges were included for purpose of VAT. Another contention raised by the learned Advocate is that in respect of goods covered by category (b) (para 1 above) it would be found that the LRs are made in the appellant s name and all the risk from the factory to the customer s premises are on appellant s account only and it is due to this reason that in respect of clearances covered by category (b) that they are paying Central Excise Duty on the total contract value which includes freight upto the customer s premises while in respect of category (c) they are not claiming the credit of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal s judgment in their own case, (supra) which reads as under 2. The appellant is a manufacturer of excisable goods. The dispute relates to the period from January, 2005 to November, 2005. During the said period, they incurred freight for outward transportation involved in supply of the excisable goods to their customers. There are two categories of sales and accordingly two types of invoices are prepared by them in respect of such sales. In the first category of cases, they claimed that invoices were raised on FOR destination basis and the freight was not shown separately in the invoices. In other cases, they have raised invoices wherein the amounts towards freight were separately indicated. It is the submission of the learned Advocate for the appellant that in both the cases ownership of the goods rested with them till the goods were delivered to the customers at the premises of the customers and that the risk like damage, loss of the goods in transit was also that of the appellant. Under these circumstances, he submits that the conditions in Board s Circular No. 97/8/2007-S.T., dated 23-8-2007 are satisfied in their case and the transportation involved till deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination basis and similarly in case of exports the port of shipment when exports are made on FOR basis. The place of removal is further clarified by C.B.E. C. in para 8.2 of the Master Circular No. 97/08/2007 (F.No.137/85/2007-CX.4), dated 23-8-2007 subject to certain conditions. Needless to mention, that the circular is binding on the department. . 26. That Hon ble Punjab and Haryana High Court in the case of Ambuja Cement Ltd. v. UOI in CEA 87/2007 order dated 10-2-2009 reported in 2009 (14) S.T.R. 3 (HC. P H) has held that the Circulars issued by the Board are binding on the department 30. That, from the clarification given above it is clear that, Cenvat credit on all the services received till title of the goods passes on to the buyer is available to the manufacturer. In our case Domestic clearances are made on FOR destination basis (sample copies of few L/R (lorry receipts) are enclosed as Exhibit-A) showing freight has been paid us), where freight is being paid by us to the transporters for transportation of goods up to the buyers place as per terms of sale and contract (Copies of few purchase orders/contracts are enclosed as Exhibit-B) and the title in good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (Emphasis supplied) 8. We find that factual position as enumerated by learned advocate for the appellant in the present case and briefly described in para 4 above are at variance with the stand taken in the above mentioned two cases. The second case referred above gives contrary impression. Claim of the ld. Advocate therefore, needs detailed examination with reference to purchase orders, invoices, L.R.s transit insurance policy, etc., to arrive at the place of sale or place of transfer of possession from appellant to customer as per Section 2(h) of the Central Excise Act. Learned Advocate has also pointed out differences in category (b) and category (c) sale. For example name of consignor/consignees, transit insurance/risk, etc. These claims will have to be first verified, particularly when no such claim was made by the appellant in the two cases referred above. After factually verifying above claim of the appellant, matter will have to be examined with reference to Sections 4 and 2(h) of the Central Excise Act. We do not consider it necessary to go into other issues such as limitation, etc., at this point of time, as the result of above exercise may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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