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TMI Blog2019 (2) TMI 1487X X X X Extracts X X X X X X X X Extracts X X X X ..... rstep of the Customer or depot/ stockist as the case may be the point of sale shall be such doorstep. The Chartered/ Cost Accountant has certified that the goods were sold on FOR basis by the Appellant and the freight/ damages in transit was responsibility of Appellant till the goods reaches the doorstep of the Customers - Also, the consignment notes were raised upon the Appellant and they did not charge any amount except price of the goods from the customers. Thus, as the ownership of the goods remained with the Appellants till the goods reached to the customer’s doorstep and the freight charges as well as damage (insurance) to the goods till destination were borne by the Appellant, they are eligible for the credit of service tax paid by them on outward freight. As regard the issue raised by the appellant that the excise duty paid on the element of freight being more than the element of cenvat credit on the outward GTA, therefore, there should not be any demand. We find force in the argument of the appellant however, since we are deciding the issue on merit, the admissibility of the Cenvat Credit on outward GTA on the basis of provision under Cenvat Credit Rules itself, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the excisable goods; warehouse or any other place or premises wherein the excisable goods have been permitted to be stored without payment of duty; depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory; from where such goods are removed . That as per Board s circular Nos. 37B order No. 59/1/2003 dt. 03.03.2003 and no. 97/8/2007 dt. 23.08.2007 stated that the place where the sale takes place, is the place of removal. Further CBEC vide Circular No. 988/12/2014 CX dt. 20.10.2014 has stated that the place where the sales take place is the place where the transfer in property of goods takes place from seller to buyer. He held that the Appellant has not produced any evidence showing the details such as name of depot/ dumpyard, quantity/ value of goods sent to their depots/ dumpyard and credit involved therein. For being eligible to avail credit one has to establish that the conditions of Board Circular of 98/7/2007 ST dt. 23.08.2007 has been satisfied. That the Appellant has not produced evidence to this effect and hence the credit is not available to the Appellant. Being aggrieved, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined with reference to point of sale . That in the present case since the liability of freight and damages to goods uptill doorstep of buyers is of Appellants, the point of sale is that where the ownership of the goods changed hands i.e doorstep of buyers. He alternatively submits that the Cenvat Credit availed by the appellant on the outward transport charges cannot be recovered as the appellants have already discharged higher duty amount on the said services. Since, the service charges was included in the assessable value of the final product cleared on payment of duty. He submits that if the Revenue is of the opinion that the factory gate is the place of removal in the said case the outward transportation charges is also not includible in the assessable value of the final product and consequently the same will not suffer excise duty. The excise duty so paid on the element of outward freight charges is much more than the Cenvat Credit availed on the outward GTA for the obvious reason that the Cenvat Credit on the outward transportation is only on the abated value of 25% whereas the entire 100% transportation was included in the assessable value of the final product. Therefore, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC) Ultratech Cement Ltd. vs Commr. 2018 TIOL 2226 CESTAT Del- Pee Cee Cosma Sope Ltd. 2018 TIOL 2810 CESTAT MAD- HCL Infosystems Ltd. 2018 TIOL 2943-CESTAT HYD-Cement Division Unit of Kesoram Industries Ltd. 2018 TIOL 1878 CESTAT MUM- Ved PMC Ltd. 2017 TIOL 3966 CESTAT DEL Aksh Optifibre Ltd. 2017 TIOL 4358 CESTAT DEL- Lally Automobiles P. Ltd. 2008 (2310 ELT 22 (SC) CCE vs Ratan Melting Wire Industries 2018 (14) GSTL 497 (SC) JK Lakshmi Cement Ltd. 2014 (35) STR 751 (Tri Del) Ultratech Cement Ltd. 2014 (36) STR 1128 (Tri. Del.) Hero Motocorp Ltd. 2015 (37) STR 567 (Tri. Del.) Kohinoor Biscuit Products 2015 (38) STR J124 (All.) Kohinoor Biscuit Products 2014 (35) STR 645 (Chhattisgarh) Lafrage India Ltd. 2010 (19) STR 340 (Tri. Del.) L G Electronics (India) P. Ltd. 2015 (3240 ELT 670 (SC) CCE vs Ispat Industries Ltd. 2018 TIOL 2223 HC MUM ST Zee Entertainment Enterprises Ltd. 2009 (240) ELT 641 (SC) Maruti Suzuki Ltd. 4. Heard both the sides and perused the records of the case. We find that the Appellant are clearing their goods on MRP basis in case of clearance from their depot/ stockists or to their customers and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or premises from where excisable goods are to be sold can only be manufacturer s premises or premises referable to the manufacturer. If we were to accept contention of the revenue, then these words will have to be substituted by the words have been sold which would then possibly have reference to buyer s premises. 4. Exceptions: (i) The principle referred to in para 3 above would apply to all situations except where the contract for sale is FOR contract in the circumstances identical to the judgment in the case of CCE, Mumbai-III vs Emco Ltd 2015(322) ELT 394(SC) and CCE vs M/s Roofit Industries Ltd 2015(319) ELT 221(SC). To summarise, in the case of FOR destination sale such as M/s Emco Ltd and M/s Roofit Industries where the ownership, risk in transit, remained with the seller till goods are accepted by buyer on delivery and till such time of delivery, seller alone remained the owner of goods retaining right of disposal, benefit has been extended by the Apex Court on the basis of facts of the cases. 5. We find that the Chartered/ Cost Accountant has certified that the goods were sold on FOR basis by the Appellant and the freight/ damages in transit was respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely the assessee. As per the terms of payment clause contained in the procurement order, 100% payment for the supplies was to be made by the purchaser after the receipt and verification of material. Thus, there was no money given earlier by the buyer to the assessee and the consideration was to pass on only after the receipt of the goods which was at the premises of the buyer. From the aforesaid, it would be manifest that the sale of goods did not take place at the factory gate of the assessee but at the place of the buyer on the delivery of the goods in question. 14. The clear intent of the aforesaid purchase order was to transfer the property in goods to the buyer at the premises of the buyer when the goods are delivered and by virtue of Section 19 of Sale of Goods Act, the property in goods was transferred at that time only. Section 19 reads as under : 19. Property passed when intended to pass. - (1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. 08.06.2018, but at the relevant time the benefit of said Circular shall be available. We find force in the argument of the Ld. Counsel as the law on this issue has been settled time and again by the Hon ble Supreme Court as per the judgment cited by the Ld. Counsel and on various other judgments that beneficial Circular cannot be withdrawn retrospectively. Consequently, the benefit of the said Circulars shall be available to the appellant during the material period of this case. As regard limitation, we find that the issue was not free from doubt and right from introduction of Cenvat Scheme under Cenvat Credit Rules, the outward GTA was the matter under litigation and for that reason the Government has to come out with clarification thereafter the matter was subject to various litigation before Tribunal, Hon ble High Courts and Hon ble Supreme Court, therefore no malafide intention can be attributed to the appellant, therefore, wherever the demand is for extended period, the same will also not be sustainable on the ground of time bar also. 8. In view of our above findings we hold that the Appellants are eligible for the cenvat credit of service tax paid on outward freight. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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