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TMI Blog2021 (8) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... of transportations. F.O.R. destination as different from FOB origin means that the seller retains the risk of goods until the goods reach the buyer - The possession in the goods remain with the seller during the transit, and the possession is transferred to the purchaser only when the goods reach him. Since the buyer had a right to reject the goods after receiving them at his place and he was supposed to make the payment at his place, that too after inspecting the goods also. Also since the appellant had a right to sell the goods to someone else, before the goods reach to the buyer at his destination, it become ample clear that the control and possession of propriety in the goods remained with the appellant till they reach the place of his buyer. Hence when appellant engaged the transporter, he instead of his buyer becomes the service recipient of freight / transport service, and the same, becomes his input. The circular dated 08.06.2018 also cannot be made retrospectively applicable to the period in question (April 2015 to June, 2017). At the relevant time, circular No. 988/12/2014 CX dated 20.10.2014 / Circular No. 97/8/2007-CX dated 23.8.2007 were applicable. It has been t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the location of the buyer. The purchase order is received by the appellant from the buyer is impressed upon, according to which the final product of the appellant was subject to inspection at the buyers place and cost was to be paid thereafter only. The rates are on FOB delivery basis to be delivered at buyers plant. It is impressed upon that the transit risk and insurance were also to be borne by the appellant. Buyer had the right to reject and return the damaged goods and payment as per the purchase order was to be made by the buyer only after the said inspection and the receipt of goods thereafter. It is submitted that these facts are sufficient to hold that propriety in the goods remains with the appellant till the inspection being done at the buyers place. Learned Counsel has laid emphasis upon the decision of Commissioner of Customs and Central Excise Aurangabad vs. Roofit Industries Ltd. reported in [2015 (319) ELT 221 (SC)] and on the decision of Ranadey Micronutrients vs. CCE reported in [1996 (87) ELT 19(SC)]. Accordingly, place of removal is the buyers place and the GTA service received are therefore the valid input for the appellant. Availment of CENVAT Credit has wron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. After hearing the both the parties and perusing the entire record of this appeal including the purchase orders received by the appellant, I observe and hold as follows: The appellant was clearing goods after receiving purchase orders from the customers specifically stating the sales to be made on FOR destination basis with a contract therein for the same. The terms and conditions of sale appear to be as follows: a) That the appellant has engaged the services of various transporters. The goods manufactured by the company are transported to various destinations only through the said transporters. The special features of the contract, inter alia, are (i) the goods have to be delivered within the time period stipulated in the contract, failing which cost of missing consignment shall be debited to the account of the transporter; (ii) the payment of freight in case of To Pay consignments would be made by the Office / Handling Agent of the appellant at the destination point; (iii) the payment of freight in case of To be Billed consignment shall be made by the appellant upon submission of the freight bill along with receipted copy of GR to the appellant; (iv) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the conditions mentioned in the definition qua the manufacturer, would be termed as input service for the said manufacturer, and credit would be available in respect of the tax paid on such services by the person liable for payment of service tax. 9. That in order to further analyse the legal position, it would be necessary to examine the definition of the expression place of removal , which, though not defined in the CENVAT Credit Rules, 2004, but have been defined in Section 4 and 2(h) of the Central Excise Act, 1944. The definitions given therein can well be adopted for the purpose of CENVAT Credit Rules, 2004, by virtue of the provisions of Rule 2(t) thereof, as per which the words and expressions used in these rules and not defined but defined in the Excise Act or the Finance Act shall have the meanings respectively assigned to them in those Acts . Similarly the definition of the expression sale contained in the Sale of Goods Act also requires examination. The relevant definitions/ concepts are being analysed as under: (a) Section 4 of the Act defines the expression place of removal as under: Definition of the Expression Place of Removal Place of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buyer, and the possession with title of goods is transferred unto the buyer, the sale does not take place and it cannot be said that goods have been sold. Though it may not always be the physical delivery and physical possession. 11. In the instant case, as the facts indicated above would show, present is the case of F.O.R. destination sales. It therefore becomes important to understand its meaning. Section 19 of the Sale of Goods Act, 1930 explains as to when property in goods passes. Section 26 of 1930 Act says: S. 26. Risk prima facie passes with property. - Unless otherwise agreed, the goods remain at the seller s risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer, the goods are at the buyer s risk whether delivery has been made or not : The prima facie rule in Section 26 is that the goods remain at the seller s risk until the property in the goods is transferred to the buyer. But when the property in the goods is transferred to the buyer the goods are at the buyer s risk whether delivery has been made or not. F.O.R. destination means the seller retains the risk of loss until the goods reach the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Central Excise Aurangabad vs. Roofit Industries Ltd. (supra) as relied upon, is applicable to the facts of the present case. Otherwise during the impugned period, the decision of Ultratech Cement (supra)was not in existence. Even the facts of the present case are different from the facts of the Ultratech Cement(supra). 14. The circular dated 08.06.2018 also cannot be made retrospectively applicable to the period in question (April 2015 to June, 2017). At the relevant time, circular No. 988/12/2014 CX dated 20.10.2014 / Circular No. 97/8/2007-CX dated 23.8.2007 were applicable. It has been time and again been settled by the Hon ble Supreme Court that the beneficial circular cannot be retrospectively withdrawn. Consequently benefit of the said circular shall continue to be available to the appellant. Accordingly, I am of the opinion that the Adjudicating Authority Below has wrongly disallowed the CENVAT Credit relying upon the decision of Ultratech Cement (supra) and consequent circulars of 2018. 15. Coming to the issue of invoking extended period of limitation. It is observed that the Circular No. 1065/4/2018-CX dated 08.06.2018 as has been relied upon by the Adjudicating ..... 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