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TMI Blog2016 (11) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... : Appeal No. Period Involved Credit Involved Penalty Involved E/1655/2010 April to Sept. 2008 Rs.19,18,630/- Rs. 2,000/- E/2594/2011 Oct. 2008 to March 2009 Rs.15,57,819/- Rs. 2,000/- E/1012/2012 Oct. 2009 to March 2010 Rs.13,81,639/- Rs.13,81,639/- E/1013/2012 April to Sept. 2010 Rs.13,73,664/- Rs.13,73,664/- The dispute pertains to denial of CENVAT credit by the lower authorities in the first two appeals filed by the assessee. In the set of second two appeals, the Revenue is in appeal on the same issue for the subsequent period when the lower authorities accepted the assessee s eligibility to claim CENVAT credit and dropped the proceedings of disallowance upholding the entitlement of the assessee. For the sake of conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A), the assessee filed the present appeals and the Revenue aggrieved by the other orders where the assessee was given relief by the lower appellate authorities have filed the Revenue appeals. 4. Heard the learned counsel for the parties and perused the records. 5. The learned counsel for the appellant in the assessee s appeals submitted that the impugned order is not sustainable in law as the same has been passed without considering the provisions of CENVAT Credit Rules and also without considering the binding precedents of higher judicial fora and also the Circular issued by the CBEC. He further submitted that the appellate authority has ignored the fact that the assessee does not sell the cigarette from their factory but sells them from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (h) Pooja Forge Lab vs. CCE: 2013 (30) S.T.R 371 (Tri.-Del.) (i) Palco metals Ltd. vs. CCE: 2012 (280) E.L.T. 299 (Tri.-Ahmd.) He further submitted that the lower authorities have considered irrelevant considerations in passing the impugned order and due regard not paid to the mandate of Section 4 in all its facets apart from tenor of Rule 2(l) of CENVAT Credit Rules. There is no doubt that cigarettes which are under physical control were stock transferred from factory to warehouse/depot and that risk and responsibilities for such stock transfers were always with the assessee who had insured the goods transferred under physical control exercised by the officers of the Revenue. This is evident from various invoices issued by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard Circulars are binding on the lower authorities as per the Supreme Court s Constitutional Bench s decision in the case of CCE vs. Dhiren Chemicals Industries: 2002 (139) E.L.T 3. These circulars have been duly followed and noticed by the first appellate authority in the appeals filed by the Revenue, therefore the impugned order challenged by the Revenue are without justification. The learned counsel further submitted that the subsequent amendment of CCR, 2004 in the form of new Rule 2(qa) defining place of removal as the same in Section 4(3)(c) by Notification No.21/2014 dated 11.7.2014 justifies the stand of the appellant, when read with Circular of 2014 coupled with decision of the Karnataka High Court in Madras Cement (supra). 6. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: "(3) The operative part of the instruction in both the circulars give similar direction and are underlined. They commonly state that the place where sale takes place is the place of removal. The place where sale has taken place is the place where the transfer in property of goods takes place from the seller to the buyer. This can be decided as per the provisions of the Sale of Goods Act, 1930 as held by Hon'ble Tribunal in case of Associated Strips Ltd. vs. Commissioner of Central Excise, New Delhi [2002 (143) E.L.T. 131 (Tri.-Del.)]. This principle was upheld by the Hon'ble Supreme Court in case of M/s. Escorts JCB Limited vs. CCE, New Delhi [2002 (146) E.L.T. 31 (S.C.)]." Therefore keeping in view, the Board Circular as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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