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TMI Blog2019 (11) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... cise duty is discharged. Under the same set of facts this Tribunal in the case of Ultratech Cement vs CCE Kutch [ 2019 (2) TMI 1487 - CESTAT AHMEDABAD ] after considering the Hon ble Supreme Court judgment in the case of Ultratech Cement [ 2018 (7) TMI 1574 - SC ORDER ] allowed the credit. Appeal allowed - decided in favor of appellant. - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) Sh. Dhaval Shah (Advocate) for Appellant Sh. L. Patra, Assistant Commissioner (AR) for Respondent ORDER PER: RAMESH NAIR The issue involved is that whether the appellant is entitled for Cenvat credit in respect of GTA service used for removal of goods wherein the sale is on FOR basis. 2. Shri Dhaval Shah, Learned Counsel appearing on behalf of the appellant subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The relevant portion of the Ultratech cement judgment passed by this Tribunal is reproduced below: 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 case of sale to institutional consumers the goods are being cleared by them by adopting the valuation of the goods in terms of Section 4. The Appellants have annexed copies of excise invoice cum gate pass which shows that the prices are inclusive of freight and insurance and nothing extra has been charged. The goods are being cleared on FOR basis and all liabilities in respect of transportation of goods or damage to goods were on account of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 221 (SC) the Hon ble Apex Court held as under : 12. The principle of law, thus, is crystal clear. It is to be seen as to whether as to at what point of time sale is effected namely whether it is on factory gate or at a later point of time, i.e., when the delivery of the goods is effected to the buyer at his premises. This aspect is to be seen in the light of provisions of the Sale of Goods Act by applying the same to the facts of each case to determine as to when the ownership in the goods is transferred from the seller to the buyer. The charges which are to be added have put up to the stage of the transfer of that ownership inasmuch as once the ownership in goods stands transferred to the buyer, any expenditure incurred thereafter has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 regard shall be had to the terms of the contract, the conduct of the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, 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, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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