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TMI Blog2016 (7) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the categories from (a) to (g). The dispute is with reference to the service tax paid on the outward transportation of goods which has been availed as Cenvat credit considering them as input service. The view taken by the authorities below was that the Cenvat credit on outward transportation up to the premises of the buyer cannot be considered as input service within the definition given in Rule 2 (l) of the Cenvat Credit Rules, 2004, since this Rule permits credit on service tax paid for outward transportation only up to the places of removal which in this case is the factory gate. It is also pertinent to note that the demand in this case pertains to the Cenvat credit taken in the month of March, 2011. 3. Heard Shri Abhishek Boob, learned Advocate for the appellant as well as Dr. S.K. Sheoran, learned DR for the Revenue. The learned Counsel for the appellant took support of the CBEC Circular No. 97/8/2007 - S.T. dated 23/08/2007 which clarified several procedural issues relating to service tax. He sought my attention to the question (c) under para 8.1 of the above Circular in which the following question had been clarified, Question : Up to what stage a manufacturer/consigno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under Section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the said place". He submitted a copy of the purchase order P.O. No. 4502617 - 0 dated 12/08/2009 received by the appellant from M/s SMS India Pvt. Limited, a subsidiary of SMS Siemag, and emphasized the fact that the prices are inclusive of freight up to the buyer's premises. Accordingly, he prayed that all the conditions indicated by the CBEC Circular stand satisfied by the appellant. Accordingly, he submitted that the appellant was entitled to the credit. He also placed reliance on the following case laws : Ambuja Cements Ltd. vs. Union of India reported in 2009 (14) S.T.R. 3 (P&H) and ABB Ltd. vs. CCE & ST, Bangalore reported in 2009 (15) S.T.R. 23 (Tri. - LB). 4. The learned DR appearing for the Revenue brought it to my notice that the CBEC has issued further Circular No. 988/12/2014 - CX. dated 20/10/2014 which has touched upon the issue in the present dispute. He specifically dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research storage up to the place of removal procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry and security, inward transportation of inputs or capital goods and outward transportation up to the place of removal." [The word from was substituted by the word upto made effective from 01/04/2008 by Notification No. 10/2008-CE (NT) dated 01/3/2008]. 7. The place of removal is defined under Section 4 of the Central Excise Act as follows :- The phrase "place of removal" is defined under Section 4 of the Central Excise Act, 1944. It states that, - "place of removal" means - (i) a factory or any other place or premises of production or manufacturer of the excisable goods ; (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be stored without payment of duty ; (iii) a depot, premises of a consignment agent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct of the parties and the circumstances of the case. Unless a different intention appears; the rules contained in Section 20 to 24 are provisions for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Section 23 provides that where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied and may be given either before or after the appropriation is made. Sub-section (2) of Section 23 further provides that where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purposes of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract". Applying this to the present case, perusal of the purchase order sample reveals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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