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TMI Blog2019 (10) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... s from job worker premise to the depot of principle when the valuation was adopted under Section 4A by applying the Notification No. 36/2001-CE (NT)? The Registry is directed to place this matter before Hon ble President of this Tribunal for constituting a Larger Bench. - Excise Appeal No. 12738 of 2018 - IO/47/2019 - Dated:- 9-8-2019 - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR Sh. Sachin Chitnis, Advocate for the Appellant Sh. T.K. Sikdar, Assistant Commissioner (AR) for the Respondent ORDER RAMESH NAIR The brief facts of the case are that the appellant is engaged in manufacture of Biscuit on job work basis on behalf of M/s Parle Products Pvt. Ltd. They received inputs from their principle M/s Parle Products Pvt. Ltd and after manufacturing of final product, they cleared the goods to depot of M/s Parle Products Pvt. Ltd and discharged excise duty on MRP based valuation after deduction of permissible abatement from MRP. They received outward transportation service from transporter for goods cleared from their factory up to depot of M/s Parle Products Pvt. Ltd. The transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40924/2019 dated 12.07.2019. 3. On the other hand, Sh. T.K. Sikdar Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He placed reliance on the following judgments: Kohinoor Biscuit Products 2015 (37) STR 567 (Tri.Del.) Kohinoor Biscuits Products 2015 (38) STR J124 (All.) Sweetco Food Industries vide Final Order No. A/10329/2018 dated 13.02.2018. of Cestat Ahmedabad. 4. In the rejoinder, Sh. Sachin Chitnis submits that in the case of Kohinoor Biscuit Products, the issue was decided on the basis of definition of place of removal as given under Section 4, therefore, the same cannot be made applicable for availing the cenvat credit when the valuation of final product is under Section 4A. He submits that as per amendment made in Rule 2 of Cenvat credit rules, 2004 vide Notification No. 21/14-CE (NT) dated 11.07.2014, the definition of place of removal for the purpose of cenvat credit has been defined by inserting clause (qa) of Rule 2 of Cenvat Credit Rules, 2004. After the definition of place of removal brought in Cenvat Credit Rules, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question. Thus, it is apparent that the appellant has paid Service tax in respect of the input service i.e. the outward transportation of the biscuits to the place of removal. As such, in view of Rule 3 of Cenvat Credit Rules the appellant has rightly availed Cenvat credit. 6. The same view was taken in the case of MB Bakers Pvt. Ltd (Supra). Hon ble Rajasthan High Court on the identical facts in the case of Mound Trading Company Pvt. Ltd. (supra) held that cenvat credit is admissible to the job worker like assessee and Revenue s appeal was dismissed. On the contrary, the Division Bench of this Tribunal in case of Kohinoor Biscuit Products (supra) in the identical facts after considering the provision of Section 4A and Section 4(3)(c) of Central Excise Act and Rule 3 of Cenvat Credit Rules, 2004 held that goods cleared from job work to principle manufacturer s depot by determining the value of goods under Section 4A of Central Excise Act, 1944, the factory gate is place of removal hence, the definition of place of removal as given in Section 4(3)(c) cannot be adopted for purpose of Cenvat Credit Rules, 2004 accordingly, cenvat credit was denied. This decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals) had held that the appellant was not entitled to Cenvat credit in respect of the service tax paid on the GTA Services envisaging the transportation of the goods. Rule 2(l) of the Cenvat Credit Rules, 2004 defines the expression input service to mean any service (i) used by a provider of taxable service for providing an output service; or (ii) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal. The appellant sought to place reliance on the expression place of removal as defined in Section 4(3)(c) of the Central Excise Act, 1944 to mean inter alia a 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. In the present case, the clear finding, which has been recorded both by the Commissioner (Appeals) and by the Tribunal, is that the sale had not taken place on an FOR Destination basis. Hence, the place of removal in the present case is the factory gale of the appellant and not the Depot of Parle B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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