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TMI Blog2018 (6) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.04.2008 and after such date, the assessee is not eligible for credit - credit not allowed. Penalty - Held that:- Taking into consideration that the issue was under litigation and was in favour of assessee at the Tribunal level as also decided by various High Courts and got settled only by the decision of the Hon’ble Apex Court, the penalty imposed is unwarranted and requires to be set aside. Appeal allowed in part. - Appeal Nos. E/42620 & 42621/2017 - Final Order No. 41725-41726 / 2018 - Dated:- 4-6-2018 - Hon ble Ms. Sulekha Beevi C.S., Member ( Judicial ) Ms. S. Yogalakshmi, Advocate for the Appellant Shri K. P. Muralidharan, AC (AR) for the Respondent. ORDER The issue involved in both these appeals being the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the actual credit availed by the appellant pertains to service tax paid on 25% of the gross amount of the freight charge incurred, whereas the appellant had paid the excise duty at the rate of 10% on the assessable value of the final goods, which is inclusive of the entire freight charge incurred. Thus, the credit availed in respect of the freight incurred is very meagre when compared to the excise duty paid on the assessable value. The department had insisted to add the freight value to the assessable value for the payment of excise duty treating the place of the client as the place of removal. Whereas, thereafter, the department has not accepted the customer s place, as the place of removal in order to deny the Cenvat Credit availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he definition of place of removal contained in Section 4 (3) (c) of Central Excise Act, 1944, and also referred to Master Circular No. 97/8/2007 dated 23.08.2007. Relying on the decision in the case of M/s. Ultratech Cement Ltd. Vs. CCE 007 (6) STR 364 (Tribunal), the learned Counsel argued that the crux of the clarification given by the Board is as to the scope of the term place of removal . Once, the term place of removal is thus understood, Cenvat Credit is eligible for transportation up to the place of removal. If buyer s premises can be considered as place of removal, then credit for GTA services up to buyer s place is also eligible. Further, that since the clarification as per the decisions as well as the Master Circular has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expression for clearance of final products up to the place of removal, if otherwise, the buyer s place can be considered as the place of removal. That, therefore, the conclusion of the Hon ble Apex Court in the said clarification is not relevant after 01.04.2008, as it appears to be incorrect. That the judgement of the Hon ble Apex Court does not deal with these issues and, therefore, does not cover the issue under consideration. She prayed that the credit on the service tax, paid on outward transportation of finished products, up to the buyer s premises is eligible and, therefore, be allowed. 6. The learned AR, Shri K.P. Muralidharan, supported the findings in the impugned order. He submitted that the issue stands settled by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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