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TMI Blog2021 (8) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise duty on the ex-factory price. Thus, under the Sale of Goods Act, in view of the terms of sale between the parties, the property in the goods is transferred on the event of goods being delivered to the transporter by the seller for delivery to the buyer, unless otherwise so stipulated in the contract - in the facts and circumstances, the place of removal is the factory gate of the appellant seller - the appellant have been rightly denied Cenvat credit on merits. Time limitation - HELD THAT:- The appellant is registered unit and have been in LTU for most of the period under dispute. LTU was created by the Department to cater to the large assesses for smooth assessment and compliance of the tax liability. In LTU there are few number of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit on outward transportation "up to the place of removal‟, which is the factory gate, in the case of the appellant. Accordingly, three periodical show cause notices were issued as follows: Show Cause Notice No. & date Amount of Cenvat credit disputed Period V(84)/15-05/11-12/Adj.II dated 15.3.2012 11,73,982/- April 2008 to September, 2011 LTU/ST/Avtec/Pitampur/50/2012 dated 15.09.2012 5,75,889/- October, 2011 to August, 2012 LTU/CEX/Avtec/20/2013 dated 3.6.2013 3,44,572/- August, 2012 to November, 2012 All the show cause notices were adjudicated on contest by a common order-in-original dated 31.3.2017, confirming the proposed demand. 3. Being aggrieved, the appellant preferred appeal before the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew as regards imposition of penalty under Rule 15(1) of the said Cenvat Rules on the Appellant. 10.2 I also find that in respect of the first show cause notice there is a case of mandatory penalty but since the details of irregular availment were recorded in the statutory records, therefore, penalty for the demand confirmed for the period 08.04.2011 to 30.09.2011 should have been equivalent to 50% of the demand so confirmed in terms of sub-section (1)(b) of Section 11AC of the Central Excise Act, 1944 read with Rule 15 of the said Cenvat Rules. Whereas, mandatory penalty equivalent to demand confirmed is imposable on the Appellant under Rule 15(2) of the said Cenvat Rules for the period from 01.04.2008 to 07.04.2011." 5. He further pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion the details of the credit at any other place, hence no suppression is involved. Thus demand for extended period along with penalty may be dropped. The appellant in support of their above submission placed reliance upon the following judgements: (i) Sanghi Industries Ltd. Vs. CCE, Kutch (Gandhidham) - 2019 (369) ELT 1424 (Tri.-Ahm.); (ii) VED PMC Ltd. Vs. CCE, Belapur - 2020 (34) GSTL 442 (Tri.-Mum.); (iii) Collector of Central Excise Vs. Chemphar Drugs & Liniments - 1989 (40) ELT 276 (SC); (iv) CCE, Kolkata-VI Vs, ITC Ltd. - 2013 (291) ELT 377 (Tri.-Kolkata). In view of the above submissions, it is prayed that demand for extended period along with penalty may be dropped. 8. Learned Departmental Representative relies on the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties understanding on procedure relating to commercial terms such as understanding on excise duty, sales tax, CENVAT Entry tax, CVD tax credits and other issues relating to importation, transportation and sales documentation are set forth in Schedule "E"." 10. Further, on perusal of the excise invoices issued by the appellant to their buyer M/s General Motors India Pvt. Ltd., being invoice dated 31 July, 2012, it is evident that freight is not a part of the sale price, and freight has been shown separately after charging the excise duty on the ex-factory price. Thus, under the Sale of Goods Act, in view of the terms of sale between the parties, the property in the goods is transferred on the event of goods being delivered to the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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