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TMI Blog2017 (9) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... utlets owned by them or up to the warehouses of commission agents, as the case may be. Freight also is paid by the main appellant-assessee up to the retail outlets/commission agents warehouses. We note that the original adjudicating authority fell in error in arriving at the correct factual position regarding ‘place of removal.’ The Revenue presumed that the services should be in or in relation to manufacture of ready-made garments, whereas Rule 2(l) clearly talks about services used by manufacturers, whether directly or indirectly in or in relation to the manufacture of final products and clearance of final products up to the place of removal. A plain reading of the said statutory provision will indicate that the presumption of the Revenue is not sustainable. Registration of the main appellant assessee as ISD - Held that: - On examination of provision of Rule 2(m) of the Cenvat Credit Rules, 2004, the Commissioner (Appeals) clearly recorded that, a manufacturer who wants to avail benefit of Service Tax should get registered himself as service provider and then he will be able to account for all the input Service Tax paid in the headquarters and distribute the same to various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directly from the factory or on payment of excise duty or through centralised warehouses where duty paid goods were kept. All activities are controlled by the corporate office. 3. The goods manufactured by the main appellant assessee are subjected to Central Excise duty in terms of tariff value fixed under Section 3 of Central Excise Act, 1944 read with Notification No.20/2001 CE(NT) dated 30.04.2001 as amended. Apart from direct sales of garments to dealers from the factory, substantial portion of production is stock transferred to own warehouses/own retail outlets/consignment agents. Such stock transfer does not constitute sale of goods. The Central Excise duty was discharged in terms of Rule 4 of Central Excise Rule, 1944. As per market demand, the goods were cleared from factory or from duty paid warehouses to required destinations. The clearances destined for own retail outlet and also to commission agents are cleared on stock transfer basis. The main appellant assessee manages Central Warehouses, retail outlets, depots of commission agents and all the expenditures including insurance, storage renting, etc on these premises. 4. The dispute in the present appeals relate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from advocates and other professional such as chartered accounts, fashion designer, consultants, etc. 2,59,453 7 Advertisement Service tax paid on the advertising services used for advertise the products manufactured and sold by the Appellant in print and other modern advertising media 86,486 8 Insurance Service tax paid on the insurance services used to insure the building, stock in trade and furniture fixtures at factory, warehouses, retail outlets owned by the Appellant to safeguard against theft, fire, rioting and other natural calamities. 70,208 9 Software Website maintenance and development Service tax paid on software website development and maintenance services which is used for running nationwide inventory and sales control a company owned retail outlets, warehouses and commission agents. The system is so advanced, each movement of a single garment can be monitored until it has been sold to consumer from any location across country by the company owned retail outle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in both the proceedings held that the services on which credit were availed by the appellant-assessee are not covered by the scope of input services under Rule 2(l) of Cenvat Credit Rules, 2004. We note that the main point of dispute in these appeals is the determination of place of removal of excisable goods. The main appellant-assessee categorically stated that they transfer their goods to their warehouses from where they further transport them to the retail outlets or warehouses of their commission agents, from where the goods were sold. Hence, it was pleaded that place of removal in terms of Section 4 of Central Excise Act 1044 should be retail outlet/warehouses of commission agents. The goods remain in their ownership, till the time of sale from these retail outlets owned by them or up to the warehouses of commission agents, as the case may be. Freight also is paid by the main appellant-assessee up to the retail outlets/commission agents warehouses. We note that the original adjudicating authority fell in error in arriving at the correct factual position regarding place of removal. In fact, we note the Commissioner (Appeals) in his order dated !4.03.2014 has examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission agents on stock transfer basis, iii) Postage Courier services availed for correspondence and to send small post parcels of goods to the retail outlets and up to the premises of the company commission agents on stock transfer basis; iv) The security services used for guarding factory, retail outlets and warehouses of the company; v) legal and professional services received from advocates and other professionals such as chartered accountant, fashion designers, consultants etc.; vi) the advertising services used to advertise the products manufactured and sold by the appellants in print and other modern advertising media; vii) the insurance services used to insure the building, stock in trade and furniture fixtures at factory, warehouses and retail outlets owned by the appellants to safeguard against theft, fire, rioting and other natural calamities; viii) software website maintenance and development services used for running nation wide inventory and sales control at company owned retail outlets, warehouses and commission agents; ix) the commission charge paid for receiving the Business Auxiliary Services from the commission agents who earn commission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid at the time of clearance from the factory but it does not mean that place of removal in all cases should be the factory gate by virtue of definition given in Section 4 (3) (c) of the Central Excise act, 1944. In the existing factual matrix in the case of the appellant since the goods are not sold at the factory gate but are sold at the retail outlets, therefore, by virtue of the express provisions of Section 4 (3) (c) (iii) of the Central Excise Act, 1944, the place of removal in the case of appellant will be the retail outlets from where goods are sold. This view is also forfeited by the relied upon case law of Metro Shoes Act Pvt Ltd Vs Commissioner of Central Excise, Mumbai-i (Supra) where CESTAT, Mumbai has held as follows in para 6: 6....... 1) Input service means any service, - (i) Used by a provider of taxable service for providing an Output service; or (ii) Used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal and includes services used in relation to setting up, modernisation, renovation or repairs of a factory, premises of provider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged to appellant till the sale of the goods from the retail showroom, the appellant is eligible to avail said credit as input service credit. 4.3 Similar view has been taken by CESTAT, Delhi in the case of L.G. Electronics (India) Pvt Ltd Vs Commissioner of Central Excise, Noida (Supra) wherein paras 4.2.4, 5.1, 6.1 7 it has been held that if deliveries are on FOR destination basis then the point of sale will be treated as place of removal and CENVAT Credit upto such place of sale will be admissible. 10. Regarding the dispute relating to registration of the main appellant assessee as ISD, we are in agreement with the findings of the Commissioner (Appeals). On examination of provision of Rule 2(m) of the Cenvat Credit Rules, 2004, the Commissioner (Appeals) clearly recorded that, a manufacturer who wants to avail benefit of Service Tax should get registered himself as service provider and then he will be able to account for all the input Service Tax paid in the headquarters and distribute the same to various units. After examining the provisions of Rule 7 of Cenvat Credit Rules, the Commissioner (Appeals) concluded that as the manufacturer was having various re ..... 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