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TMI Blog2024 (10) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... hich includes the freight also. The evidence placed by the appellant regarding FOR destination sales included the Marketing Circulars, Sales Contract/Agreement, Excise Invoice, Commercial Invoice, Lorry Receipts, Transporter s Bills, Payment Details and Copies of the TR-6 Challans, etc. The invoices supported the submission that the place of removal is customer s premises and the same has been admitted by the Revenue in the show cause notice itself. The functioning of the appellant was to the effect that the customer was charged only for the quantities received by them and in that regard, the transporter appointed by the appellant used to get the acknowledgement copy of the lorry receipts for having delivered the goods to the customers, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Road [FOR] destination basis from the factory gate or depot of the appellant to the premises of the customers under Rule 2 (l) of the Cenvat Credit Rules, 2004 [CCR, 2004]. 2. The said issue is no longer res-integra and has been decided in several decisions. The Apex Court in Commissioner of Customs and Central Excise Vs. Roofit Industries Ltd. [2015(319) ELT 221(SC)] laid down the test of determining the place of removal whether it is at the factory gate or at a later point of time when the delivery of goods is affected to the buyer at the premises of the buyer and, therefore, observed that the charges which are to be added have to be up to the stage of transfer of the ownership and once the ownership in goods stands transferred to the buy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Rajasthan High Court as reported in 2020 (32) GSTL J-156 (SC). The Madhya Pradesh High Court also held similar view in M/s. Mahle Engine Components Vs. Union of India [2020(13) GSTL-OL-173 (MP)]. On the contrary, the Karnataka High Court in Bharat Fritz Werner Ltd. Vs. Commissioner of Central Tax [2022(66) GSTL 434 (Kar.)], considering the decision of the Supreme Court in Ultra Tech Cement and also the Circular No. 1065/4/2018 CX dated 08.06.2018, allowed the credit to the appellant on the principle that place of removal is buyer s premises. 4. In the above scenario, the Larger Bench of the Tribunal interpreted the applicability of the decision of the Supreme Court in Ultra Tech Cement (supra) in view of the reference made in M/s R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he legal principles referred to in the above decisions, the law is settled that in the case of FOR destination sales the place of removal is the buyers premises. We may now examine the facts of the present case as to whether the appellant is eligible to claim Cenvat credit. 8. The appellant is engaged in the manufacturing of excisable good i.e. cement clinker and have been availing the benefit of cenvat credit facility on service tax paid on freight incurred on outward transportation of cement from factory to the customer s premises and depot to the customer s premises on FOR basis destination sales and utilizing it for payment of central excise duty on cement in terms of the Rules, 2004. The case of the Department was that the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the lorry receipts for having delivered the goods to the customers, therefore, the customer pays only for the quantity, which is actually received by him. This shows that the ownership of the goods was transferred at the customer s premises and the appellant bore the risk of loss or damage to the goods during the transit to the destination till the goods finally reaches to the customer s door step. 12. The appellant has also placed on record the Chartered Accountant s Certificate that the ownership of the goods and the property in the goods remained with the appellant till the delivery of the goods in proper condition to the customer at his premises. The freight charges has not been separately recovered from the customers either di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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