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TMI Blog2019 (2) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... in case of which no MRP is mentioned on bags. The cement is directly dispatched to the customers from the factory or to the Depot and they are availing services of Goods Transport Agency for transportation of cement. The appellant were issued show cause notices for the period April'2008 to December' 2008, Jan'2009 to August'2013, June'2014 to Jan'2015 and February'2015 to September 2015 proposing to deny cenvat credit availed on service tax paid on outward transportation of service tax. The demand was confirmed by the adjudicating authorities holding that the credit on GTA service is available as input service only up to place of removal after 01.04.2008 in terms of Rule 2 (l) of Cenvat Credit Rules, 2004. He held that in terms of Section 4 (3) (c) of the Central Excise Act. 'place of removal' means factory or any other place or premises of production or manufacture of 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submits that the findings of the adjudicating authority are cryptic as the demand calculation sheets to the show cause notice itself states that the goods were sent to dumpyards/ depots and other buyers premises. That the same is absolutely clear from the excise invoice cum gate pass and hence the contention of the adjudicating authority is wrong. He also invited our attention to the copies of gate passes cum excise invoices on which clearances were made to depots/ stockists as well as institutional consumers. He also invites our attention to certificate issued by the Chartered/ Cost Accountant certifying that the goods were cleared on FOR basis and the freight charges are part of assessable value. He also relies upon the Board Circular No. 1065/4/2018- CX dt. 08.06.2018 wherein the CBEC has viewed that the "place of removal" is required to be determined 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 Appellant, the point of sale is when the ownership of the goods changed hands i.e doorstep of buyers. In case of Appellant, he has also produced copy of OIO dt. 16.11.2016 pertaining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. * 2013 (294) ELT 203 CCE vs Ajinkya Enterprises * 2009 (235) ELT 785 (Guj) CCE vs Creative Enterprises affirmed by Hon'ble Supreme Court 2009 (243) ELT A-120 (SC) * 2015 (37) STR 364 (T) Ultratech Cement Ltd. vs Commr. * 2015 (319) ELT 221 (SC) CCE vs Roofit Industries * 1995 (77) ELT 424 (T)-Pioma Industries Ltd. * 2014 (35) STR 645 (Chhattisgarh) Lafrage India Ltd. * 2010 (19) STR 340 (Tri. Del.) L G Electronics (India) P. Ltd. * 2018 (5) TMI 1454-CESTAT Mumbai * JSW Steel Ltd. 2018 (4) TMI 660 CESTAT Mumbai 3. On the other hand, Shri. Jeetesh Nagori Ld. Addl. Commissioner (AR) appearing for revenue submits that the Hon'ble Apex Court in the case of CCE Vs. Ultratech Cement Ltd. 2018 (9) GSTL 337 (SC) has held that the cenvat credit on GTA Services availed for transport from place of removal to buyers premises is not admissible. He also reiterates the findings of the adjudicating authorities. Shri Nagori, Ld. AR also relied upon various following judgments: * 2018 (9) GSTL 337 (SC) CCE vs Ultratech Cement Ltd. * 2018 (13) GSTL J101 (SC) Ultratech Cement Ltd. vs Commr. * 2018 TIOL 2226 CESTAT Del- Pee Cee Cosma Sope Ltd. * 2018 TIOL 2810 CESTAT MAD- H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urer. The observation of Hon'ble Court in para 16 in this regard is significant as reproduced below : "16. It will thus be seen where the price at which goods are ordinarily sold by the assessee is different for different places of removal, then each such price shall be deemed to be normal value thereof. Sub-clause (b) (iii) is very important and makes it clear that a depot, the 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 are all places of removal. What is important to note is that each of the premises is referable only the manufacturer and not to the buyer of excisable goods. The depot or the premises of the consignment agent of the manufacturer are obviously places which are referable to the manufacturer. Even the expression "any other place of premises" refers only to a manufacturer's place or premises because such place or premises is to be stated to be where excisable goods "are to be sold". These are key words of the sub-section. The place or premises from where excisable goods are to be sold can only be manufacturer's premises or premises referable to the manufacturer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny expenditure incurred thereafter has to be on buyer's account and cannot be a component which would be included while ascertaining the valuation of the goods manufactured by the buyer. That is the plain meaning which has to be assigned to Section 4 read with Valuation Rules. 13. In the present case, we find that most of the orders placed with the respondent assessee were by the various Government authorities. One such order, i.e., order dated 24-6-1996 placed by Kerala Water Authority is on record. On going through the terms and conditions of the said order, it becomes clear that the goods were to be delivered at the place of the buyer and it is only at that place where the acceptance of supplies was to be effected. Price of the goods was inclusive of cost of material, Central Excise duty, loading, transportation, transit risk and unloading charges, etc. Even transit damage/breakage on the assessee account which would clearly imply that till the goods reach the destination, ownership in the goods remain with the supplier namely 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 aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... destination issue. Hence the said judgment is not applicable in the facts of the present case. 6. As regards other judgments cited by rivals, though we have considered the same, but since, we have discussed above the most relevant apex court judgments, we need not to discuss each and every judgment. 7. 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, we need not to deal this aspect hence, the issue related to this fact left open. As regard the submission made by Ld. Counsel that they have been operating as per the guideline given in the Circular dated 22.12.2014 and 23.08.2007 which was operative at the relevant time, therefore, even though the same were withdrawn w.e.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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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