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TMI Blog2021 (1) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... S LTD. [ 2015 (10) TMI 613 - SUPREME COURT] , the duty paid on freight was legally not payable. So the duty amount paid legally as well as the amount legally not payable but paid, both were entitled for refund if the refund claim was filed as per law. The issue whether or not place of removal can be manufacturer s premises or buyer s premises has since been settled by the Apex Court in Ispat Industries, which has to be respectfully followed for the purpose of assessment of duty as per law. Since the instant case is being decided on merits, we are not inclined to go into the aspect of limitation. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 482 of 2012 - FINAL ORDER NO. 75025/2021 - Dated:- 19-1-2021 - SHRI P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by invoking extended period of limitation which culminated into the adjudication order dated 14.05.2012. 3. Shri B. L. Narasimhan, Shri Deepro Sen and Shri Rahul Tangri, learned Advocates appeared for the appellant. Shri K. Chowdhury, learned Authorized Representative appeared for the Department. 4. The learned Advocate for the appellant submitted that the issue is no longer res integra inasmuch as the same has been decided in their favour by the Hon ble Supreme Court in the case of CCE vs. Ispat Industries Ltd [2015 (324) ELT 670 (SC)] wherein it has been held that the place of removal as specified in Section 4 of the Act can never be the buyer s premises and that the place or premises from where excisable goods are to be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, there cannot be any willful suppression. On same counts, he also contested the imposition of penalty. 5. The learned Authorized Representative for the department heavily relied on the decision in the case of CCE vs. Roofit Industries Ltd [2015 (319) ELT 221 (SC)] to submit that where the intent of the assessee is to sale the manufactured good at the buyer s premises, who also undertakes the delivery till the buyer s premises, the freight element has to be added in the assessable value for payment of Excise duty. He also submitted that the decision in the above case has been rendered by the Apex Court, distinguishing the facts in the case of Escorts JCB Ltd (Supra) and submitted that sale in the instant case took place at the buyer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, has categorically observed that the buyer s premises can never be the place of removal as has been defined in Section 4 of the Act. The Hon ble Court also made a very important observation that the words used in Section place or premises from excisable goods are to be sold can only be the manufacturer s premise and if the contention of the Revenue is accepted, the said words will have to be substituted by the words have been sold which would only then have possibly have reference to the buyer s premises. The Court also gave a specific finding in para 32 with regard to the decision in Roofit Industries case, wherein it observed that the attention of the Court was not drawn to Section 4 as originally enacted and as amended to dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, that as a matter of law with effect from the Amendment Act of 28-9-1996, the place of removal only has reference to places from which the manufacturer is to sell goods manufactured by him, and can, in no circumstances, have reference to the place of delivery which may, on facts, be the buyer s premises...... 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter receipt of goods at the premises of the buyer. On facts, therefore, it was held that the sale of goods did not take place at the factory gate of the assessee. Also, this Court s attention was not drawn to Section 4 as originally enacted and as amended to demonstrate that the buyer s premises cannot, in law, be a place of removal under the said Section . In view of the aforesaid, since the legal position has been clearly settled by the Hon ble Supreme Court that place of removal would necessarily be the manufacturer s factory, depots or warehouse belonging to the manufacturer from where the excisable goods are to be sold which is not the case herein. The buyer s premises can never be the place of removal so as to merit inclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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