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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 ..... o.988/12/2014-CX dated 20.10.2014 which has been relied upon by the assessee issued by the Board clearly states that the CENVAT credit of service tax paid on goods transported from factory to depot is admissible irrespective of basis of valuation of goods - the impugned orders in the appeals filed by the assessee are not sustainable in law and I set aside the impugned orders by allowing the appeals of the assessee with consequential relief, if any. As far as appeals filed by the Revenue are concerned, I do not find any infirmity in the impugned orders passed by the Commissioner (A) therefore I uphold the impugned orders and dismiss the Revenue s appeals. - E/1655/2010, E/2594/2011, E/1012-1013/2012 - Final Order No. 21109-21112/2016 - Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the entitlement of the assessee. For the sake of convenience, we may take the facts from Appeal No. E/2594/2011. 2. Briefly the facts of the case are that the assessee is engaged in the business of manufacture of various brands of cigarettes falling under Central Excise Tariff Heading 2403 of CETA, 1985. The assessee availed CENVAT credit of service tax paid on transportation of goods from factory to warehouse which was distributed by the Head Office at Kolkata by following the procedure envisaged for ISD under the CENVAT Credit Rules (CCR), 2004. The assessee was issued show-cause notice dated 17/18.6.2005 by the Additional Commissioner of Central Excise, Bangalore and called upon the appellant to show-cause as to why input service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e does not sell the cigarette from their factory but sells them from their warehouses across India and hence the warehouse constitutes the place of removal . He further submitted that the evidence produced in the form of invoice copies and other documents have not been considered by the department. The authorities below have not appreciated the text and context of the Section 4 of the Act and therefore the impugned order is bad in law. He further submitted that the impugned order has the effect of denying with the left hand what was bestowed by the right hand in the form of CENVAT credit, which is opposed to the Hon ble Supreme Court s judgment in the case of UOI vs. Suksha International and Nutan Gems: 1989 (39) E.L.T. 503 (S.C.). He furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcised by the officers of the Revenue. This is evident from various invoices issued by the assessee from their factory under Rule 11 of CER, 2002 for transfers of stocks and there are separate invoices raised for sale to buyers which is for sale from warehouse/depot/godown i.e., place of removal . He also submitted that the stand of the Revenue in the impugned order that the place of removal is the factory does not hold water at all inasmuch as stocks were transferred at their own cost and risk till the place of removal viz., warehouse by the appellant. For the purposes of sale, the place of removal was always the warehouse which also emerges from Section 4(3)(c) of the Act. The learned counsel further rely on the CBEC Circular in support o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with Circular of 2014 coupled with decision of the Karnataka High Court in Madras Cement (supra). 6. On the other hand, the learned AR has reiterated the findings in the impugned order and submitted that the place of removal is the factory gate and therefore the CENVAT credit on GTA is not permissible to the assessee. He further submitted the clearance of cigarette is under physical control and duty is levied on specific rates. The subsequent sale from their depot is assessee s own arrangement after the liability of duty has been discharged. 7. After considering the submissions of both the parties, I find that the crux of the issue to be decided in these appeals is whether the service tax paid on GTA services on the outward freigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited vs. CCE, New Delhi [2002 (146) E.L.T. 31 (S.C.)]. Therefore keeping in view, the Board Circular as well as the decisions rendered by the various Tribunals, I am of the considered opinion that the impugned orders in the appeals filed by the assessee are not sustainable in law and I set aside the impugned orders by allowing the appeals of the assessee with consequential relief, if any. As far as appeals filed by the Revenue are concerned, I do not find any infirmity in the impugned orders passed by the Commissioner (A) therefore I uphold the impugned orders and dismiss the Revenue s appeals. 8. In view of the above, all the four appeals are accordingly disposed of. ( Order was pronounced in Open Court on 09/11/2016. ) - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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