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TMI Blog2023 (2) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... in brief for the adjudication are as follows: That the appellants are engaged in manufacturing of cement. They are also registered under service tax in relation to taxable service i.e. transport of goods by road service. The appellants were clearing their cement in following two manners: (i) Clearances to their depots & consignment agents, from where the goods are sold. (ii) Clearances to industrial users and bulk consumers (i.e. other than the clearances made through their depots or consignment agents), which were delivered on 'Free on Road (FOR) basis'. The Department scrutinized the accounts of the appellant in respect of clearance of cement dispatched on 'Free on Road (FOR) basis' to their customers. Department formed an opinion that to arrive at the assessable value of the goods for calculation duty of excise it is required to determine "place of removal". The place of removal in turn is determined based on terms and conditions of contract of sale between the assessee and their customers and the manner of delivery of the goods. The customers, purchase orders and conditions therein were observed to be as follows: Name of the Buyer P.O.No. & Date Terms & Conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Tax, Medchal GST, [2020 (10) TMI 674 - CESTAT Hyderabad] v) CCE Allahabad Vs M/s Sarthek Enterprises Ltd., [2016 (8) TMI 443 - CESTAT Allahabad] vi) M/s Aditya Birla Chemicals India Ltd., Vs CCE & ST Ranchi, [2021 (1) TMI 709 - CESTAT Kolkata] Learned Counsel impressed that the Department was wrong in holding the buyers place to be the place of removal of the goods. The duty is wrongly alleged to be short paid. The confirmation of the demand is therefore liable to be set aside. Appeal accordingly is prayed to be allowed. Learned Counsel has relied upon the decision of Hon'ble Apex Court in the case of CCE, Nagpur Vs Ispat Industries reported as 2015 ( 324 ) ELT 670 (SC). Reliance has also been placed upon the decision of this Tribunal Hyderabad Bench itself in appellant's own case decided by Final Order No. A/30124-30127/2022 as was decided on 28.11.2022 titled as My Home Industries Pvt. Ltd. vs. Commissioner of Central Tax, Visakhapatnam while impressing upon that the present appeals are squarely covered in light of the aforesaid decisions that the orders under challenge are prayed to be set aside and three of the appeals are prayed to be allowed. 5. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Apex Court earlier while deciding the case of Union of India Vs Bombay Tyre International Ltd., (1984) 1 SCC 467 has held as follows: "Where the excisable article or an article of the like kind and quality is not sold in wholesale trade at the place of removal, that is, at the factory gate, but is sold in the wholesale trade at a place outside the factory gate, the value should be determined as the price at which the excisable article is sold in the wholesale trade at such place, after deducting there from the cost of transportation of the excisable article from the factory gate to such place. The claim to other deductions will be dealt with later. ........................................ ........................................ Where the sale in the course of wholesale trade is effected by the assessee through its sales organisation at a place or places outside the factory gate, the expenses incurred by the assessee upto the date of delivery under the aforesaid heads cannot, on the same grounds, be deducted. But the assessee will be entitled to a deduction on account of the cost of transportation of the excisable article from the factory gate to the other places wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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., Vs CCE (2003) 1 SCC 281 was held to have similar facts as were there in the case of Ispat Industries Ltd. (supra). The Hon'ble Court also observed that in the case of Commissioner of Customs & Excise, Aurangabad Vs Roofit Industries Ltd., reported as 2015 (319) ELT 221 (S.C.) the Hon'ble Supreme Court had distinguished Escort's JCB's case (supra). 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. Hence, the reliance of Department on the decision of Roofit Industries Ltd., (supra) is also no more sustainable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... places of removal. What is important to note is that each of these premises is referable only to the manufacturer and not to the buyer of excisable goods. The depot, or the premises of a consignment agent of the manufacturer are obviously places which are referable only to the manufacturer. Even the expression "any other place or premises" refers only to a manufacturer's place or premises because such place or premises is stated to be where excisable goods "are to be sold". These are the key words of the subsection. The place or premises from where excisable goods are to be sold can only be the manufacturer's premises or premises referable to the manufacturer. If we are to accept the contention of the revenue, then these words will have to be substituted by the words "have been sold" which would then possibly have reference to the buyer's premises." 11. The Circular further provides in para 4, that the principle laid down in Ispat Industries Ltd. 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 v. Emco Ltd. (supra) and CCE v. M/s. Roofit Industries Ltd. (supra). That is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in favour of the appellants and against Revenue and the demands are unsustainable on merits and need to be set aside and we do so. Since we have taken a decision on the merits of the case, the issue of limitation becomes irrelevant." Further, a similar view was taken in M/s. Vijai Electricals Ltd., Vs. Commissionerate [2019 (11) TMI 301- CESTAT]." 10.1 This Tribunal has thereafter held as follows: "18. Having considered the rival contentions, we find that under the similar facts and circumstances, the Apex Court (in Ispat Industries) distinguishing its earlier ruling in the case of Roofit Industries, have held that the place of removal referred to in Section 4 r/w Rule 5 and Rule 7 of Central Excise Valuation Rules, clearly indicates, that the place of removal refers to only the sellers premises (factory gate, warehouse, depot, consignees premises). It is nowhere stated that the buyer's premises can be E/30031 & 30032 & 30164/2019 & E/30214/2020 14 place of removal. Hon'ble Apex Court also observed that in the Roofit case, it did not have occasion to examine the provisions of Section 4, since it was enacted and amended from time to time in the Central Excise Act r/w the Val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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