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TMI Blog2012 (12) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... E/2685/2010 M/s Pearl Beverages Ltd., CCE, C ST, Guntur OIO No. 20/2010- C.Ex dt. 30.09.2010 2. E/720/2012 OIA No. 56/2011 (G) CE dt. 23.12.2011 3. E/21912/2014 OIA No. 24,25 26/2014 (G) CE dt. 21.04.2014 4. E/21913/2014 5. E/21943/2014 2. The appellants herein are manufacturers of beverages and they have appointed distributors/ dealers as per the terms of agreement. The terms and conditions of sale of the product by the appellant to the dealers are that the dealer shall make full advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val. In this regard there are two circulars of the Board namely 37B order no 59/1/2003 dt 3-3- 2003 and circular no 97/8/2007 dt. 23.8.2007. The relevant paragraphs of these two circulars are reproduced below for ease of reference (i) Circular dt 3-3-2003 : 8. Thus, it would be essential in each case of removal of excisable goods to determine the point of sale . As per the above two Apex Court decisions this will depend on the terms (or conditions of contract) of the sale. 8. The insurance of the goods during transit will, however, not be the sole consideration to decide the ownership or the point of sale of the goods. (ii) Circular dt 23-8-2007: 8.2 .. it is, therefore, clear that for a manufacturer/consignor, the eligi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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) ELT 131 (Tri-Del)] . This principle was upheld by the Hon ble Supreme Court in case of M/s. Escorts JCB Limited v. CCE, New Delhi [2002 (146) E.L.T. 31 (S.C.)]. 4) Instances have come to notice of the Board, where on the basis of the claims of the manufacturer regarding freight charges or who bore the risk of insurance, the place of removal was decided without ascertainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buyer. Section 23 provides that where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied and may be given either before or after the appropriation is made. Subsection (2) of Section 23 further provides that where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purposes of transmission to the buyer, and does not res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities and asserts that the sale is complete at the factory gate as the payment has already been made in advance and therefore there is no case for claiming credit after the place of removal. 4. We have considered the arguments on both sides and find that the assertion of the Counsel is that the Board Circular (supra) which is binding on the officers has not been followed by the adjudicating authority while denying the CNEVAT credit under CENVAT Credit Rules, 2004. Aforesaid Board s circular clearly states that the place of removal is the point where the sale has been completed under Sale of Goods Act, 1930, i.e., the ownership of the goods gets shifts to the buyer. It is the assertion of the Learned Counsel that this transfer of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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