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TMI Blog2024 (7) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment was of the view that the transportation was beyond the place of removal and therefore, the appellant is not eligible for Cenvat credit of the service tax paid on such freight charges incurred for transportation - periods from July 2011 to November 2011, December 2011 to March 2012, April 2012 to December 2012, January 2013 to September 2013 and October 2013 to September 2014 - HELD THAT:- The very same issue was considered by the Hon ble High Court, Madras in the appellant's own case in [ 2019 (9) TMI 328 - MADRAS HIGH COURT] . As per judgment dated 20.08.2019, the Hon ble High Court categorically held that the appellant is eligible for credit. Following the decision of the Hon ble High Court in the appellant's own case, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f central excise duty, they would be eligible to avail credit of service tax on such freight charges. The impugned order is modified to the extent of allowing the credit of service tax for outward transportation to the appellant's own unit. The demand, interest and penalties imposed in this regard is set aside - The issue of availment of credit on outward transportation up to the buyer's premises is remanded to the adjudicating authority for fresh consideration. Appeal allowed in part and part matter on remand. - MS. SULEKHA BEEVI.C.S., MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Shri. J. Shankarraman, Advocate, for the Appellant Ms. O.M. Reena, Authorised Representative for the Respondent ORDER The brief fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for transportation to the appellant's own unit at Jamshedpur and Uttarakhand, the Tribunal vide Final Order No. 41949 41951/2018 had disallowed the credit. Against such order, the appellant filed appeals before the jurisdictional High Court. As per judgment passed in CMA No.1933 -1935 of 2018, the Hon ble High Court set aside the final order and allowed the credit availed of service tax paid on freight charges incurred for transportation of goods from appellant factory to their own unit at Jamshedpur and Uttarakhand. It is prayed that the credit on such transportation charges may be allowed. 3. In the present case, the credit of service tax paid on freight charges incurred for transportation of goods up to the buyer's premises is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Industries Ltd., 2015 (319) E.L.T. 221 (S.C.). It is submitted that the purchase orders as well as the invoices would establish that the place of removal is the buyer's premises. The appellant has rightly availed the credit. It is prayed that the appeals may be allowed. 5. The Ld. AR. Ms. O.M. Reena, appeared and argued for the department. The findings in the impugned order was reiterated. It is submitted that in order to ascertain the place of removal, the matter requires to be remanded to the adjudicating authority. 6. Heard both sides. 7. The first issue to be considered is whether the appellant is eligible to avail Cenvat credit of service tax on outward transportation of goods from their factory to their units at Jamshedpur and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Constitutional Courts to the case before it. The misapplication of the Judgments without comparing the facts, can result in serious miscarriage of justice and can expose the non- application of mind by the responsible appellate forums like the CESTAT in the present case. 12. Having analysed the facts of the case on hand before us and the facts of the case before the Hon'ble Supreme Court, we reiterate that the ratio of the Judgment of the Supreme Court in Ultra Tech case supports the view which we have taken rather than the contention raised by the learned counsel for the Revenue. 13. Therefore, we allow the Appeals of the Assessee and set aside the order of the Adjudicating Authority as well as the Tribunal and direct the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of CCE, Mumbai III Vs. Emco Ltd., - 2015 (322) E.L.T. 394 (S.C.) and CCE Vs. M/s. Roofit Industries Ltd., 2015 (319) E.L.T. 221 (S.C.). The Board s Circular issued in 2018 also clarifies the same. In such circumstances, we are of the considered opinion that this issue requires to be remanded to the adjudicating authority, who is directed to ascertain the place of removal. The appellant is to be given personal hearing and is at liberty to furnish documents to establish their contention. In case the appellant has included the freight charges in the assessable value for payment of central excise duty, they would be eligible to avail credit of service tax on such freight charges. 11. In the result, we order as under: - (i) the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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