9911796707
Advanced Search 
TMI Blog2016 (9) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. That all elements of cost are included in the MRP and the delivery becomes an FOR destination basis transaction. That any loss in transit is borne by the appellant and ownership of goods till delivery of goods remains with the appellant. Those in case goods are not taken delivery by the customer than appellant has every right to sell the goods to another buyer. That all the conditions prescribed under CBEC circular No. 97/8/2007-ST dt 23/8/2007 are fulfilled. That the pattern of sale of all Cement manufacturers is the same and in the case of other cement manufacturers such credit has been allowed. Learned Advocate relied upon, interalia, the following case laws in support:- (i) Birla Corporation Ltd Vs CCE & ST [2016 TIOL-2082 CESTAT] (ii) CCE Dehradun Vs M/s Forace Polymers Pvt. Ltd. (iii) Ambuja Cement Ltd Vs UOI [2009 (236) ELT 431 (P&H)] (iv) Ultra tech Cement Ltd Vs CCE & ST Rohtak [2015 (37) ELT 364 (Tri.-Del)]. 3. Sh. S. Mukhopadhyay Suptd (AR) appearing for the Revenue relied upon the Apex Courts decision in the case of CCE & Cus Nagpur Vs. Ispat Industries Ltd [2015 (324) ELT 670 (S. C) ] to argue that buyers premises cannot be taken as a place of remov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not defined but are defined in the 1944 Act or the 1994 Act then they are to be given the same meaning for the CC Rules as assigned to them in those Acts. Accordingly, reliance on Section 4 of the 1944 Act has been made where place of removal has been defined as under :- "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 stored 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." 8. It is clear from the definition that for a manufacturer/consignor the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the place of removal. The circular further contemplates compliance of certain conditions where the sale has taken place at the destination point. The aforementioned part of the circular reads as under :- "......However, there may be situations where the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from challenging the correctness of the circular even on the ground of the same being inconsistent with statutory provisions. It goes further to limit the right of the revenue to file an appeal against the correctness of the binding nature of the circular. Therefore, there is no escape from the conclusion that the circular is binding on the revenue. 11. The only question then is whether the appellant fulfills the requirement of circular. The first requirement is that the ownership of the goods and the property therein is to remain with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step. The aforesaid condition has to be considered to be fulfilled because the supply of cement by the appellant to its customer is FOR destination . The appellant also bears the freight in respect thereof up to the door step of the customer. The freight charges incurred by it for such sale and supply at the door step of the customer are subjected to service tax which is also duly paid by the appellant. Moreover, the definition of expression input service is available in Rule 2(l) of the CC Rules, which reads thus :- "2(l) input service mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion -4 (3) (c) (iii) was not existing. This Section 43 (c) (iii) of the Central Excise Act 1944 was inserted with effect from 14/5/2003 by Section -136 of the Finance Act 2003, therefore, after 14/5/2003 the place of removal could also be the destination point of delivery where goods are sold. Secondly, Apex Court was dealing with the unamended Sec 4 (3) (c) of the Central Excise Act 1944 on valuation. Thirdly before the Apex Court the issue was neither the admissibility of Cenvat Credit nor an interpretation of Sec 4 (3) (c) (iii) of the amended Sec 4 of the Central Excise Act 1944. Under the above factual matrix Apex Court ruling that buyer s premises can not be the place of removal is not applicable to the facts existing in this appeal. 5.1 Above observations are also fortified by the view taken by CESTAT Delhi case law in the case of CCE Dehradun Vs M/s Forace Polymers Pvt Ltd (Supra) where following observations have been made in Para- 6 :- "6 The main Thrust in the Revenue s appeal is the finding of the Hon'ble Supreme Court in Ispat Industries Ltd. (Supra) regarding place of removal. The Hon'ble Supreme Court was examining the question of valuation of excisable goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
