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TMI Blog2018 (5) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... risk upto the place of removal was borne by the purchaser. Therefore, looking all the three criteria required by Board, the place of removal is at buyer s place. Therefore, in terms of the circular, appellant was very much entitled for the CENVAT Credit. Penalty u/s 11AC - Held that: - since appellant did not have any mala fide intention, penalty imposed under Section 11AC is also not sustainable. There is no dispute raised either by the assessee or by the Revenue. Therefore, once the assessment attained finality, no benefit can be taken from the final assessed position of the final product for the purpose of adjustment of separate credit taken on outward transportation. Appeal allowed in part. - Appeal No. E/87937 & 87939/2017 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the freight is included in the value of final product and the same is FOR, it means the delivery is made at the customer s place and the seller bears the risk of loss or damage of the goods. He submits that in fact the sale of goods and its transportation was included in the total sale value. Therefore, the risk of loss or damage was on account of the appellant. Since the same is on FOR basis, the sale is at buyer s place. Therefore, in terms of Board s Circular, they were entitled for the CENVAT Credit on outward transportation. Since they acted upon the Board s Circular, there cannot be any mala fide intention. Therefore, the extended period was not invocable. 3. Shri M.R. Melvin and Shri N.N. Prabhudesai, learned Superintendents ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service tax paid on the transportation up to such place 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. From the reading of the above Circular, it is clear that terms place of removal was interpreted and it was clarified that if sale of goods is on FOR basis that is upto the destination of the purchaser, the risk upto the place of delivery was borne by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions made by the learned C.A. that since 100% of transportation charges included in the assessable value of the final product, the CENVAT Credit taken over and above the amount on 25% of transportation charges stands reversed, I do not agree with this submission for the reason that assessment of the final product attained finality. There is no dispute raised either by the assessee or by the Revenue. Therefore, once the assessment attained finality, no benefit can be taken from the final assessed position of the final product for the purpose of adjustment of separate credit taken on outward transportation. 5. As per my above discussions, the impugned orders stand modified to the above extent. The appeal is partly allowed. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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