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TMI Blog2024 (11) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... arately collected by the appellant, therefore, the same is deemed to be included in the assessable value on which the excise duty was paid. In this identical fact the issue in hand is covered by this Tribunal s judgment in the case of Ultratech Cement Ltd. [ 2019 (2) TMI 1487 - CESTAT AHMEDABAD] which was upheld by the Hon ble Gujarat High Court reported at the Commissioner, Central Goods and Service Tax versus M/s. Ultratech Cement Ltd. [ 2020 (3) TMI 1206 - GUJARAT HIGH COURT ]. The issue involved in the present case is no longer res-integra and accordingly the appellant are entitled for Cenvat credit on outward GTA in the facts of the present case. Hence, the impugned orders are set aside - Appeal allowed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. C L AMAHR Shri Vikas Mehta, Consultant for the Appellant Shri Rajesh R Kurup, Superintendent (AR) for the Respondent ORDER RAMESH NAIR The issue involved in the present case is that whether the appellant is entitled for Cenvat credit on outward GTA service used in connection with clearance of excisable goods namely cement from their factory premise to buyer premise, in the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 200910 to 201314 of service tax paid on outward transportation of goods by the respondents. 4. The show cause notice was issued for denial of said Cenvat Credit which was confirmed by the adjudicating authority holding that the credit of GTA (Goods Transport Agency) is available on input service upto the place of removal after 1st April 2008 in terms of Rule 2(l) of Cenvat Credit Rules, 2004. According to the adjudicating authority, in terms of Section 4(3)(c) of the Central Excise Act, 1944, place of removal means a factory or any other place or premises of production or manufacture of the excisable goods; a warehouse or any other place or premises wherein the excisable goods have been permitted to be stored without payment of duty. 5. However, Commissioner, Central Excise, Kutch (Gandhidham) by order dated 20th March 2015 disallowed Cenvat Credit of ₹ 16,67,51,317/ and levied interest and penalty. 6. Being aggrieved by the order passed by the adjudicating authority, the appeals were preferred before the Customs, Excise and Service Tax Appellate Tribunal (for short, 'the Tribunal') and the Tribunal, after hearing both the sides, has held as under: 4 Heard both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturers place or premises because such place or premises is to be stated to be where excisable goods are to be sold . These are key words of the subsection. The place or premises from where excisable ˙goods are to be sold can only be manufacturer s premises or premises referable te the manufacturer. If we were to accept 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 buyer s premises. 4. Exceptions: (i) The principle referred to in para 3 above 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, MumbaiIII vs Emco Ltd 2015(322) ELT 394(SC) and CCE vs M/s Roofit Industries Ltd 2015(319) ELT 221(SC). To summarise, in the case of destination sale such as M/s Emco Ltd. and M/s Rootfit Industries 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, benefit has been extended by the Apex Court on the basis of facts of the cases. 5. We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was at the premises of the buyer. From the aforesaid, it would be manifest that the sale of goods did not take place at the factory gate of the assessee but at the place of the buyer on the delivery of the goods in question. 14. The clear intent of the aforesaid purchase order was to transfer the property in goods to the buyer at the premises of the buyer when the goods are delivered and by virtue of Section 19 of Sale of Goods Act, the property in goods was transferred at that time only˙ Section 19 reads as under: 19. Property passed when intended to pass. (1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perative at the relevant time, therefore, even though the same were withdrawn w.e.f. 08.06.2018, but at the relevant time the benefit of said Circular shall be available. We find force in the argument of the Ld. Counsel as the law on this issue has been settled time and again by the Hon ble Supreme Court as per the judgment cited by the Ld. Counsel and on various other judgments that beneficial Circular cannot be withdrawn retrospectively. Consequently, the benefit of the said Circulars shall be available to the appellant during the material period of this case. As regard limitation, we find that the issue was not free from doubt and right from introduction of Cenvat Scheme under Cenvat Credit Rules, the outward GTA was the matter under litigation and for that reason the Government has to come out with clarification thereafter the matter was subject to various litigation before Tribunal, Hon ble High Courts and Hon ble Supreme Court, therefore no malafide intention can be attributed to the appellant, therefore, wherever the demand is for extended period, the same will also not be sustainable on the ground of time bar also. 8. In view of our above findings we hold that the Appellant ..... 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