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TMI Blog2024 (6) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal before the first appellate Authority. The Writ Petition is liable to be dismissed with liberty to the petitioner to file statutory appeal under Section 35(A) of the Central Excise Act, 1944 within a period of 30 days from the date of receipt of a copy of this order. If such an appeal is filed within the time stipulated by this Court, the Appellate Commissioner shall entertain the appeal and dispose of the same on merits and in accordance with law. Petition dismissed. - Honourable Mr. Justice C. Saravanan For the Petitioner : Mr. N. Sudalaimuthu For the Respondent : Mr. R. Nandha Kumar Senior Standing Counsel ORDER The petitioner has filed this writ petition for a Certiorari calling for the records in order in Original Nos.4 and 05/2020 C.Ex dated 30.09.2020 passed by the respondent and to quash the same. 2. This is a second round of litigation in respect of the demand that was confirmed earlier in respect of the show cause notice dated 28.04.2016, vide Order in Original Nos.3 and 4 of 2018 dated 29.03.2018. The petitioner had earlier preferred an appeal before the Appellate Commissioner against the aforesaid order, which culminated in an adverse order of the Appellate C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instant case, the basic issue of the admissibility of Cenvat Credit of Service Tax paid on outward transportation from the factory gate/depots to the premises of the customers. In this connection I would like to discuss the relevant statutory provisions on what constituted as input service: Rule 2(1) Of the erstwhile Cenvat Credit Rules, 2004 during the relevant period, read as under: input service means any service, - (w.e.f 01.04.2008) used by a provider of output service for providing an output service; or (ii) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final product upto the place of removal, and includes services used in relation to modernization, renovation or repairs of factory, premises of provider of Output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following order ORDER i) I confirm the demand of Rs. 13,03,786/- (Rupees Thirteen lakhs three thousand Seven Hundred and Eighty Six only) (Service Tax 12,66,617/-, Ed. Cess Rs. 24,792/- and SHE Cess Rs. 12,377/-) being the ineligible input service credit availed on outward freight beyond the place of removal for the period from 2011-12 to 2015-16 (upto Oct 2015) and order recovery thereof from them under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A(2) /11A(10) of the Central Excise Act, 1944, as it existed at the relevant time. (ii) I confirm the demand of Rs 5,23,586/- (Rupees Five Lakh Twenty Three Thousand Five Hundred and Eighty Six Only) (Service Tax Rs. 4,91,476/- SB Cess Rs. 17,420/-, KK Cess - Rs 14,690/-) being the ineligible input service credit availed on outward freight beyond the place of removal (from factory to buyer's premises) for the period from November-2015 to June-2017) and order recovery thereof from them under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A(10) of the Central Excise Act, 1944. (iii) I demand interest at appropriate rates on the amount confirmed at Sl Nos. (i) (ii) above under Rule 14 of the Cenvat Credit Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the plain meaning which has to be assigned to Section 4 read with the Valuation Rules. 14. In the present case, we find that most of the orders placed with the respondent assessee were by the various government authorities. One such order i.e. order dated 24-6-1996 placed by Kerala Water Authority is on record. On going through the terms and conditions of the said order, it becomes clear that the goods were to be delivered at the place of the buyer and it is only at that place where the acceptance of supplies was to be effected. Price of the goods was inclusive of cost of material, Central excise duty, loading, transportation, transit risk and unloading charges, etc. Even transit damage/breakage on the assessee account which would clearly imply that till the goods reach the destination, ownership in the goods remain with the supplier, namely, the assessee. As per the terms of payment clause contained in the procurement order, 100% payment for the supplies was to be made by the purchaser after the receipt and verification of material. Thus, there was no money given earlier by the buyer to the assessee and the consideration was to pass on only after the receipt of the goods which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Oil Corporation Ltd. another, 5 Commissioner Of Central Excise, Bolpur vs M/s Ratan Melting Wire Industries6 . 4 AIR 1997 SC 69 5 (2004) 3 SCC 488 6MANU/SC/8792/2008 17. 35) We may also point out that the decisions of the Supreme Court in EMCO Ltd. (2 supra) and M/s Roofit Industries Ltd. (3 supra) which specifically dealt with FOR contract sales were not referred to or considered in Ultra Tech Cement Ltd. case (1 supra) and the said case was not a case of F.O.R contract. 36) Learned counsel for the respondent has also brought to our notice decision rendered in the very case of the appellant in M/s. Inox Air Products Limited vs. Commissioner of GST and Central Excise, 7 by the Customs, Excise and Service Tax Appellate Tribunal, Chennai rendered on 22.02.2024, where a plea similar to that one raised by the appellant in the instant case was accepted by the Customs, Excise and Service Tax Appellate Tribunal, Chennai. In the said case, the Tribunal has also held that there is no dispute in the payment of service tax or in regard to the documents and the appellant need not to produce one-to-one co-relation and it has no need to establish nexus of the input services with manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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