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TMI Blog2019 (3) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... e name of customers at the time the goods left the factory and the freight amount was separately shown in the invoice. The factual position that emerges in the present case is similar to that of the contract before the Supreme Court in Ispat Industries Ltd.[2015 (10) TMI 613 - SUPREME COURT], it has to be held that the place of removal of goods was the factory gate, though the place of delivery may be buyer’s premises. This Tribunal in Shardha Ceramics Pvt. Ltd. vs CCE, Jodhpur, [2018 (8) TMI 732 – CESTAT New Delhi], after placing reliance upon the decision of the Supreme Court in Ispat Industries Ltd., also observed that the cost of transportation from the place of removal upto the place of delivery of excisable goods is excluded from the computation of excise duty provided it is charged to the buyers and separately shown in the invoices. Appeal dismissed - decided against Revenue. - Excise Appeal No. 52848 of 2018 - A/50311/2019-EX[DB] - Dated:- 24-1-2019 - MR. JUSTICE (DR.) DILIP GUPTA, PRESIDENT And MR. C.L. MAHAR, MEMBER (TECHNICAL) Appellant: Sh. R.K. Mishra, DR Respondents: Sh. B.L. Yadav, Conslt. ORDER PER JUSTICE DILIP GUPTA: This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding the case where the goods are not sold, be the value determined in such manner as may be prescribed. (2) The provisions of this section shall not apply in respect of any excisable goods for which a tariff value has been fixed under sub-section (2) of section 3. (3) For the purposes of this section,- (a) assessee means the person who is liable to pay the duty of excise under this Act and includes his agent; (b) persons shall be deemed to be related if- (i) they are inter-connected undertakings; (ii) they are relatives; (iii) amongst them the buyer is a relative and distributor of the assessee, or a sub-distributor of such distributor; or (iv) they are so associated that they have interest, directly or indirectly, in the business of each other. Explanation - In this clause - (i) inter-connected undertakings shall have the meaning assigned to it in clause (g) of section 2 of the Monopolies and Restrictive Trade Practices Act, 1969 (64 of 1969); and (ii) relative shall have the meaning assigned to it in clause (41) of section 2 of the Companies Act, 1956 (1 of 1956); (c) place of removal means - (i) a factory or any other place or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Supreme Court in Ispat Industries Ltd. was, as to whether, by virtue of a transit insurance policy also in the name of the manufacturer, excise duty was liable to be recovered on freight charges incurred for transportation of goods from the factory gate to the buyer s premises, treating the buyer s premises as the place of removal. Interpreting Section 4 of the Act as it stood on 28 September, 1996, the Supreme Court in paragraphs 16 and 17 observed that the place of removal has reference to the place from where the manufacturer sells the goods and not to the place of delivery which could be the buyer s premises. 16. It will thus be seen that 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 the 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 these premises is referable only to the manufacturer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasis supplied) It will thus be seen that the effect from 1 July, 2000, the premises of a consignment agent were no longer place of removal. 6. However, Section 4 was again amended on 14 May, 2003 and the Supreme Court also examined the said amendment made to Section 4 on 14 May, 2003 and observed as follows : 23. It is clear, therefore, that on and after 14-5-2003, the position as it obtained from 28-9-1996 to 1-7-2000 has now been reinstated. Rule 5 as substituted in 2003 also confirms the position that the cost of transportation from the place of removal to the place of delivery is to be excluded, save and except in a case where the factory is not the place of removal. 24. It will thus be seen that, in law, it is clear that for the period from 28-9-1996 up to 1-7-2000, the place of removal has reference only to places from which goods are to be sold by the manufacturer, and has no reference to the place of delivery which may be either the buyer s premises or such other premises as the buyer may direct the manufacturer to send his goods. As a matter of law therefore, the Commissioner s order and Revenue s argument based on that order that freight charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory gate and place of delivery is the buyer s premises, hence the cost of freight was rightly not included in the value for arriving at the assessable value for the purpose of levy of Central Excise Duty. Simultaneously, I find that the Cenvat Credit of Service Tax paid on outward GTA service upto place of delivery of the goods is not available to the appellants. Therefore, confirmation of demands of duty along with interest vide the impugned orders deserves to be set aside subject to condition that the Cenvat Credit of Service Tax paid on outward GTA service upto place of delivery of the goods is not availed by the appellants and if the said credit was already availed, the same is reversed/deposited along with interest within a period of 15 days from the date of receipt of these orders. Consequently, imposition of penalty becomes void. 8. The learned Representative for the Department has, however, placed reliance upon the decision of the Supreme Court in CC CE, Aurangabad vs Roofit Industries Ltd., reported in 2015 (319) ELT 221 (SC), to contend 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 deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The said decision of the Supreme Court will not come to the aid of the Appellant because of the terms of the order. The terms and conditions of the order in the contracts before the Supreme Court in the aforesaid case provided that the goods were to be delivered at the place of the buyer and price of goods was inclusive of cost of material, Central Excise duty, loading, transportation, transit risk and unloading charges. Further, as per the terms and conditions of payment, there was no money given by the buyers to the assessee and the consideration was to pass on after the receipt of the goods which was at the premises of the buyer. It was for this reason that the Supreme Court in Roofit Industries Ltd. concluded that the sale of goods did not take place at the factory gate of the assessee, but at the place of buyer on the delivery of the goods in question. 10. In the present case, as noted above, the terms conditions of the purchase order are entirely different and more akin to the terms and conditions contained in the contracts before the Supreme Court in Ispat Industries. In fact, the decision of the Supreme Court in Roofit Industries Ltd. was distinguished by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee was the place of removal of excisable goods. This case again is wholly distinguishable on facts on the same lines as the Roofit Industries case. (emphasis supplied) 11. As the factual position that emerges in the present case is similar to that of the contract before the Supreme Court in Ispat Industries Ltd., it has to be held that the place of removal of goods was the factory gate, though the place of delivery may be buyer s premises. 12. This Tribunal in Shardha Ceramics Pvt. Ltd. vs CCE, Jodhpur, reported in 2018 (8) TMI 732 CESTAT New Delhi, after placing reliance upon the decision of the Supreme Court in Ispat Industries Ltd., also observed that the cost of transportation from the place of removal upto the place of delivery of excisable goods is excluded from the computation of excise duty provided it is charged to the buyers and separately shown in the invoices. This decision of the Tribunal was subsequently followed by the Tribunal in CCE, Jaipur-I vs Tiirupati Plastomatics Pvt. Ltd. Ors. decided on 10 August, 2018. 13. In this view of the matter, we find no infirmity in the order passed by the Commissioner (Appeals). The appeal filed by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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