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TMI Blog2024 (10) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the verification of the records of the appellant. Though Boards circular no. 97/8/2007-CX dated 23.08.2007, 988/12/2014-CX dated 20.10.2014 and 999/6/2015-CX dated 28.02.2015 were available at the time of adjudication of the show cause notices and when the matter was considered by the first appellate authority. However no findings have been recorded in the matter by referring to these circulars. Impugned order misdirects itself by recording that in terms of Rule 9 (5) burden to prove the admissibility of the Cenvat Credit was on the appellant and appellant failed to discharge the same. Such an approach was totally uncalled for and the appellant should have been asked produce the necessary documents for verification as per the above referred Board Circulars. The matter needs to be remitted back to the original authority for consideration de novo of the issues involved in the light of Board Circulars and the documents which appellant will produce when called for. The matter is remanded to the original authority for determination of the issue - appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... e 3 read with Rule 2(1) of the CENVAT Credit Rules, 2004. 2.3 After completion of enquiries in the matter, a show cause notice dated 13.09.2011 was issued to the appellant asking him to show cause as to why: (i) Inadmissible CENVAT Credit of Service Tax amounting to Rs 26,68,679/- wrongly availed by them and interest accrued thereon should not be demanded and recovered under Rule .14.of the CENVAT Credit Rules read with Section l1AB of the Central Excise Act,1944; and (ii) Penalty under Rule 15 of the CENVAT Credit Rules 2004 read with Section11AC of the Central Excise Act, 1944 should not be imposed upon them for the amount of credit wrongly availed and utilized by them. 2.4 This notice was followed by periodical show cause/ statement of demand on the same issue the details are as in table below: S No Date of SCN Period Amount 1 30.12.2011 Feb 2011 to Oct 2011 6,50,099 2 07.11.2012 Nov 2011 to Aug 2012 4,87,668 3 30.08.2013 Sep 2011 t Jun 2013 83,067 4 30.06.2014 July 2013 to Mar 2014 22,535 5 02.03.2015 Apr 2014 to Aug 2014 26,095 6 24.09.2015 Sept 2014 to Mar 2015 1,717 7 09.03.2016 Apr 2015 to Sept 2015 7,20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal has canvassed that the said demand dọes not even relate to service tax paid on GTA services It is submitted that Out of the demand of Rs 26,62,923/- which has been challenged in the instant appeal, the demand of Rs 21,58,582/- relates to credit in elation to export of goods in the nature of CHA, Agency charges, documentation charges, air freight and alike charges, the demand of Rs 3,73,649/- relates to export of goods in which place of removal was port, and Credit upto the port of export is admissible under law. It is also submitted that demand of Rs 130730/- is barred by limitation as it is beyond the period of one year, 10. find that issue in the impugned order relates to the admissibility or otherwise of the CENVAT credit on Goods Transport Agency and in the impugned order it is an admitted fact that the CENVAT credit pertains to GTA services and there is no dispute in respect of same. However instead of contesting the grounds of inadmissibility of the CENVAT credit on GTA services involved in the impugned order, the appellant has put forth the fresh grounds stating that the said demand of CENVAT credit does not even relate to the Service tax on GTA services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority or before me, more so, when the appellant during the personal hearing had voluntarily committed to submit the related documents before me within one week. However even after a lapse of more than 4 months from the date of personal hearing no documents have been submitted by the appellant. 18. In view of the above discussions I hold that the appellant has failed to demonstrate any infirmity in the impugned order in respect of the said issue so as to justify any interference. 19. As regards interest confirmation on the said issue is concerned , it is a settled principle that once the duty liability is upheld, the liability to pay interest is automatic and consequential." 4.3 Along with the appeal memo appellant have submitted a chart giving the details of the CENVAT Credit Sought to be denied to them by the impugned order which is reproduced below: S No Period Cenvat credit of service tax on Total Demand as per SCN Remarks Freight + loading etc for outward transport of goods cleared for Home Consumption Freight + loading etc for outward transport of goods cleared for Home Consumption On other services namely BAS, Inland haulage, CHA & Documenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 -reg. Madam/Sir, Attention is invited to Boards circular no. 97/8/2007-CX dated 23.08.2007, 988/12/2014-CX dated 20.10.2014 and 999/6/2015-CX dated 28.02.2015. Attention is also invited to the judgment of Hon'ble Supreme Court in the case of CCE vs M/s Roofit Industries Ltd 2015(319) ELT 221(SC), CCE vs Ispat Industries Ltd 2015(324) ELT670 (SC), CCE, Mumbai-III vs Emco Ltd 2015(322) ELT 394(SC) and CCE &ST vs. Ultra Tech Cement Ltd dated 1.2.2018 in Civil Appeal No. 11261 of 2016. In this regard, references have been received from field formations seeking clarification on implementation of aforesaid circulars of the Board in view of judgments of Hon'ble Supreme Court. 2. In order to bring clarity on the issue it has been decided that Circular no. 988/12/2014-CX dated 20.10.2014 shall stand rescinded from the date of issue of this circular. Further, clause (c) of para 8.1 and para 8.2 of the circular no. 97/8/2007-CX dated 23.08.2007 are also omitted from the date of issue of this circular. 3. General Principle: As regards determination of 'place of removal', in general the principle laid by Hon'ble Supreme Court in the case of CCE vs Ispat Industries Ltd 2015(324) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts of the cases. (ii) Clearance for export of goods by a manufacturer shall continue to be dealt in terms of Circular no. 999/6/2015-CX dated 28.02.2015 as the judgments cited above did not deal with issue of export of goods. In these cases otherwise also the buyer is located outside India. 5. CENVAT Credit on GTA Services etc: The other issue decided by Hon'ble Supreme Court in relation to place of removal is in case of CCE &ST vs. Ultra Tech Cement Ltd dated 1.2.2018 in Civil Appeal No. 11261 of 2016 on the issue of CENVAT Credit on Goods Transport Agency Service availed for transport of goods from the 'place of removal' to the buyer's premises. The Apex Court has allowed the appeal filed by the Revenue and held that CENVAT Credit on Goods Transport Agency service availed for transport of goods from the place of removal to buyer's premises was not admissible for the relevant period. The Apex Court has observed that after amendment of in the definition of 'input service' under Rule 2(l) of the CENVAT Credit Rules, 2004, effective from 01.03.2008, the service is treated as input service only 'up to the place of removal'. 6. Facts to be verified: This circular only br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods to a wharfinger for safe custody, is prima facie deemed to be a delivery of the goods to the buyer. 4. In most of the cases, therefore, it would appear that handing over of the goods to the carrier/transporter for further delivery of the goods to the buyer, with the seller not reserving the right of disposal of the goods, would lead to passing on of the property in goods from the seller to the buyer and it is the factory gate or the warehouse or the depot of the manufacturer which would be the place of removal since it is here that the goods are handed over to the transporter for the purpose of transmission to the buyer. It is in this backdrop that the eligibility to Cenvat Credit on related input services has to determined. 5. Clearance of goods for exports from a factory can be of two types. The goods may be exported by the manufacturer directly to his foreign buyer or the goods may be cleared from the factory for export by a merchant exporter. 6. In the case of clearance of goods for export by manufacturer exporter, shipping bill is filed by the manufacturer exporter and goods are handed over to the shipping line. After Let Export Order is issued, it is the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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