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TMI Blog2023 (2) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... been sold . Resultantly, the place of removal refers only to the place from where goods are to be sold by the manufacturer and thus it has no reference to the place of delivery which may be either the buyers premises or the premises as the buyer may direct the manufacturer to send his goods. The earlier decision in the case of ESCORTS JCB LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-II [ 2002 (10) TMI 96 - SUPREME COURT] was held to have similar facts as were there in the case of Ispat Industries Ltd. The Hon ble Court also observed that in the case of COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [ 2015 (4) TMI 857 - SUPREME COURT] the Hon ble Supreme Court had distinguished Escort s JCB s case. But based on the facts of that case (Roofit s), it was held that the sale of goods in terms of Section 19 of sale of goods Act did not take place at the factory gate of assessee. The Court also observed that the Court s attention was not drawn to Section 4 of Excise Act as originally enacted and as amended to demonstrate that the buyer s premises cannot, in law, be a place of removal under the said section. The value of freight charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard Shri R. Muralidhar, Learned Counsel for the appellant and Shri A. Rangadham, Learned Departmental Representative for the Respondent. 4. Learned Counsel for appellant has mentioned that their case is squarely covered by the decision of this Tribunal in the case My Home Industries Pvt. Ltd. Vs Commissioner of Central Tax, Visakhapatnam as was decided vide Final Order No. A/30124- 30127/2022 dated 28.11.2022. The decision of Hon ble Apex Court in the case of CC and CCE Nagpur Vs Ispat Industries [2015 (324) ELT 670 (SC)] also squarely covers the present case. 5. Per contra Learned DR had relied upon another decision of Hon ble Apex Court itself in the case of CCE Aurangabad Vs Roofit Industires Ltd., reported as [2015 (319) ELT 221 (SC)] 6. Having heard the rival submissions of the parties, perusing the records and the case laws as relied upon by both the parties to these appeals, we observe and hold that the issue involved herein is the same as was the issue before the Hon ble Apex Court in Ispat Industries Ltd., (supra) case that: whether excise duty is liable to be paid on freight charges incurred for transportation of goods from the factory gate to the buyer s pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a place other than the place of removal, the cost of transportation from the place of removal to the place of delivery is statutorily excluded. 7.2 The amendment in the said provision which came into effect on 01.07.2000 was also discussed by the Hon ble Apex Court. It was appreciated that amendment has given the concept of transaction value which makes it clear that the freight or transportation expenses are not to be included in calculating the excise duty payable. 8. Rule 5 and 7 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 were also discussed by Hon ble Apex Court in the said decision, it was held that Rule 5, as was substituted in the year 2003, also confirms the position that cost of transportation from place of removal to place of delivery is to be excluded from the assessable value. 9. We observe that Learned DR has laid emphasis upon clause 3 of the definition of place of removal as was relevant for the period in question because said clause includes the place from where the goods are to be sold in the definition of place of removal , the buyer s place becomes the place of removal where sale gets concluded at buyer s pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 4 of the Act, the CENVAT Credit Rules and drawn attention to the four judgment of the Apex Court namely; 1. Roofit Industries Ltd. [2015 (319) ELT 221(SC)] 2. CCE vs Ispat Industries Ltd. [2015 (324) ELT 670 (SC)]; 3. CCE, Mumbai III vs Emco Ltd. [2015(322) ELT 394 (SC)] 4. CCE ST vs Ultra Tech Cement Ltd. [2018(9) GSTL 337 (SC)] The Board rescinded its earlier Circular No. 988/12/2014-CX. dated 20 October 2014 and also omitted clause (c) of para 8.1 and para 8.2 of its circular No. 97/8/2007-CX dated 23.8.2007. It was clarified that by way of general principle as regards determination of place of removal, the principle laid down by the Apex Court in the case of CCE vs Ispat Industries Ltd. may be applied wherein the Apex Court have reiterated the principle laid down in Escorts JCB Ltd. 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) has to be referred with reference to the premises of the manufacturer. Para 16 of the ruling of Ispat Industries was reproduced, which reads as follows: 16. It will thus be seen that where the price at which go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. Further, the place of removal has reference only to places from which goods are to be sold by the manufacturer, and has no reference to the place of delivery, E/30031 30032 30164/2019 E/30214/2020 11 which may be either the buyer s premises or such other premises as the buyer may direct the manufacturer to send his goods. Thus the view taken by the Revenue that freight charges must be included, as the sale in the present facts took place at the buyer s premises, is incorrect. Further, there cannot be extended place of removal, and the factory premises or the warehouse (as mentioned in the Section), alone being places of removal. Under no circumstances, can the buyer s premises, therefore, be the place of removal, for the purpose of Section 4. 14. The Appellant submits that in the identical set of facts, the Hyderabad bench of this Tribunal in the case of Commissioner of Central Tax Customs, Medchal Commissionerate Vs. ICOMM Tele Limited [2019 (7) TMI 252 - CESTAT HYDERABAD ] has held that issue of including the freight from seller's premises to the buyer's premises, when the sale is for delivery at the buyer's premises, has been settled at the hands o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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