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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 ..... place of removal where sale gets concluded at buyer s place. The said submission is not acceptable in the light of decision of Hon ble Apex Court in Ispat Industries Ltd., [[ 2015 (10) TMI 613 - SUPREME COURT] ] only wherein the Hon ble Apex Court has held that the words used in the provision are goods are to be sold . The contention of the Revenue would be correct if and only if the words in the provision would have been goods have been sold . The earlier decision in the case of Escorts JCB Ltd., Vs CCE [ 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 of Customs Excise, Aurangabad Vs 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 The Court also observed that the Court s attention was not drawn to Section 4 of Excise Act as originally enacted and as amended to demonstrate that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed 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 Conditions Nikhil Construction NC/PO/2015-16/517/dated 09/03/2016 Taxes 2% inclusive (Against C Form), Excise duty including, Delivery place: Nikhil RMC Plant, Jambhulwadi Ambegaon, Transport: Including Krishnae Infrastructure Pvt Ltd., RPN-PO-HO-160309001 dated 09.03.2015 LBT at their company side. Freight/Transport charges and Unloading charges at ICL side. Material is against C Form billing and for self-use not for res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. While making submissions on behalf of the Department Learned DR has acknowledged the findings of the Hon ble Apex Court in the case of Ispat Industries (supra) and also the decision of this Tribunal in appellant s own case dated 28.11.2022. He, however, submitted that the definition of place of removal in sub-clause C in the explanation of Section 4 of Central Excise Act includes, in addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 where it is sold. The cost of transportation will include the cost of insurance on the freight for transportation of the goods from the factory gate to the place of delivery. 7.1 The Apex Court further observed that Section 4 of the Act in the year 1996 brought about three important changes. The Court observed as follows: Place of removal has been defined for the first time to mean not only the premises of production o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. This Tribunal also while deciding the same issue on same set of facts and circumstances vide Final Order No. A/30124-30127/2022 dated 28.11.2022 in Appeal titled as My Home Industries Pvt. Ltd. vs. Commissioner of Central Tax, Visakhapatnam has relied upon the said decision of Hon ble Apex Court in the case of Ispat Industries (supra) and has held: 10. The place of removal is the factory gate of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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, where the ownership, risk in transit, remained with the seller till goods are accepted by buyer on delivery and till such time of delivery, seller alone remained the owner of goods retaining right of disposal. The said circular further provides that the guidelines and the judgment of Apex Court may be referred to and based on facts and circumstances of each case. Further provides past cases should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Valuation Rules. After examining Section 4 r/w the rules, the Apex Court observed that the cost of transportation from the place of removal up to the place of delivery of excisable goods is excluded from Assessable value for the computation of excise duty. 11. We have no reason to differ from the aforesaid decisions, the discussion therein and the conclusion arrived therein. Following t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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