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TMI Blog2021 (6) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... or passing appropriate order afresh - Appeal allowed by way of remand. - Central Excise Appeal No. 9 of 2021 - - - Dated:- 19-4-2021 - HON BLE SRI JUSTICE A.V. SESHA SAI AND HON'BLE MS. JUSTICE J. UMA DEVI Petitioner and Advocate : Lakshmi Kumaran Sridharan Respondent and Advocate : None Judgment: (Per Hon ble Sri Justice A.V. Sesha Sai) This appeal is filed under Section 35G of the Central Excise Act, 1944 against the final order, dated 12.6.2020, passed by the Customs, Excise and Service Tax Appellate Tribunal Regional Bench, Hyderabad (hereinafter referred to as CESTAT ) in Appeal No. E/30523/ 2018 for the period August, 2014 to March, 2016. 2. According to the appellant, it is engaged in the business of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable only in respect of service tax paid on freight involved up to place of removal and in the present case, the factory gate of the appellant being the place of removal, any service tax paid on the transport of goods from place of removal to the customer s place would quality as input service and is not eligible for availing credit; (ii) That the outward transportation of final products from place of removal being an activity posterior to clearance of goods, cannot be said to be used directly or indirectly in relation to clearance of final products from place of removal; (iii) That the Appellant has failed to establish that the sale and transfer of property in goods occurred at buyer s premises and hence credit of the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contends that the order passed by the Appellate Tribunal, confirming the impugned demand, is highly arbitratory, erroneous, contrary to law and not in consonance with the material available on record. In elaboration, it is further maintained by the learned counsel that though the appellant herein brought to the notice of the Tribunal about the existence of a Circular bearing No.1065/4/2018-CD, dated 08.06.2018, without considering the impact of the said circular, the Appellate Tribunal simply confirmed the demand and the same cannot be approved. 8. On the other hand, Sri Suresh Kumar Routhu, learned Senior Standing Counsel for Customs and Central Excise, strongly supporting the orders impugned, vehemently contends that there is no error ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Escorts JCB (Supra) to the extent that place of removal is required to be determined with reference to point of sale with the condition that place of removal (premises) is to be referred with reference to the premises of the manufacturer. 4. Exceptions: (i) The principle referred to in para 3 above would apply to all situations except where the contract for sale is FOR contract in the circumstances identical to the judgment in the case of CCE, Mumbai/III Vs.Emco Ltd., 2015 322) ELT 394 (SC) and CCE Vs. M/s Roofit Industries Ltd., 2015 (319) ELT 221 (SC). To summarise, in the case of FIR destination sale such as M/s Emco Ltd and M/s Roofit Industries where the ownership, risk in transit, remained with the seller till good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said circular as indicated in the preceding paragraphs. 11. For the aforesaid reasons, this appeal is allowed, setting aside the final order dated 12.6.2020 passed by the Customs, Excise and Service Tax Appellate Tribunal Regional Bench, Hyderabad in Appeal No. E/30523/2018 for the period August, 2014 to March, 2016 and the matter is remanded to the Appellate Tribunal for fresh consideration of the issue and for passing appropriate order afresh after taking into account the Circular bearing No.1065/4/2018-CD, dated 08.6.2018 and after giving opportunity of hearing to the appellant. It is also made clear that the appeal now remanded is directed to be disposed of on its own merits without being influenced by any of the observations made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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