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TMI Blog2019 (6) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... as the credit being claimed is on the Goods Transport Agency services availed to transport cement from the factory gate to the buyer s premises on the ground that the sale being on FOR basis, the place of removal shifts to the buyer s premises and therefore Cenvat Credit is admissible, I am legally bound to follow the ratio of the judgment of the Hon ble Apex Court which held against the assessee that no Cenvat Credit is admissible. Credit cannot be allowed - appeal dismissed - decided against appellant. - Appeal No. E/30147/2019 - A/30555/2019 - Dated:- 6-6-2019 - MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Shri G. Prahlad, Advocate for the Appellant. Shri P. Sudhakar Reddy, Authorized Repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the place of removal. 2. Prior to the amendment with effect from 01.03.2008 the words used were outward transportation from the place of removal . In other words, the definition of input service has been modified and restricted with effect from 01.03.2008. The appellant herein availed Cenvat Credit on Goods Transport Agency services provided by transporters for outward transportation of goods from their factory to the buyer s premises. It is the case of the revenue that after 2008, such Cenvat Credit is not admissible in view of the changed Rule 2(l) of CCR, 2004. 3. Learned counsel for the appellant would submit that the expression in the Rule place of removal has not been defined in CCR, 2004 upto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods continue to be in their possession. The buyer s premises, being the place where the sale takes place, it should be considered as place of removal. Therefore, they are entitled to Cenvat Credit on the Goods Transport Agency services availed for transporting the goods from their factory to the buyer s premises. The lower authorities have not agreed with the argument of the appellant holding that the appellant failed to provide any documentary evidence in support of their claim that the sale to dealers takes place at the premises of the buyer. Aggrieved by the order of the lower authority, the appellant preferred an appeal before the first appellate authority who, vide the impugned order, upheld the order of the lower authority and rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Roofit Industries (supra), with respect to the valuation under Section 4, it has been held that where the sale takes place at the buyer s premises that will be the place of removal and all costs up to that point need to be included. Countering the argument of the learned counsel, learned departmental representative submits that the Hon ble Apex Court in the case of Ultratech Cement (supra) considered an identical issue including the assertion by the assessee that their sales were on FOR basis and therefore, the place of removal is the buyer s premises. After considering these submissions as well as the arguments that where the sale takes place at the buyer s premises, the place of removal under Section 4 shifts to the buyer s premises, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment explains that the adjudicating authority in that case had issued an order against the assessee which was appealed against. It reads as follows: 8. The aforesaid order of the Adjudicating Authority was upset by the Commissioner (Appeals) principally on the ground that the Board in its Circular dated August 23, 2007 had clarified the definition of place of removal and the three conditions contained therein stood satisfied insofar as the case of the respondent is concerned, i.e. (i) regarding ownership of the goods till the delivery of the goods at the purchaser s door step; (ii) seller bearing the risk of or loss or damage to the goods during transit to the destination and; (iii) freight charges to be integral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 11. Learned counsel argues before me that the Hon ble Apex Court has not considered the fact that the goods were being sold on FOR basis and therefore, the place of removal shifts to the buyer s premises. A plain reading of Para 8, 9 and 13 of the judgment does not show that the Hon ble Supreme Court has not considered this factor. I, further, find that in the Ultratech Cement case the assessee has thereafter filed a Review Petition before the Hon ble Apex Court which was dismissed with the following words: Delay condoned. The instant review petition is filed against the order dated 01.02.2018 whereby the aforementioned appeal was allowed. We have carefully gone through the review petition and the con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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