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TMI Blog2024 (12) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... Ultratech Cement Ltd 2019 (2) TMI 1487- CESTAT- Ahm; * M/s. Ultratech Cement Ltd 2020 (3) TMI 1206 - GUJARAT HIGH COURT; * M/s. Sanghi Industries Ltd. 2019(2) TMI 1488- CESTAT- Ahm; * M/s. Vardhman Plastochem Pvt. Ltd 2022(3) TMI 188-CESTAT- Ahm; * Schaeffler India Ltd 2022(4) TMI 514- CESTAT Ahm; * Prestress Wire Industries 2022(6) TMI 1179- CESTAT Ahm. 3. Shri Mihir G Rayka, Additional Commissioner(AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. We find that the fact is not under dispute that the appellant have undertaken to deliver the goods at the customer's premises. The freight charges of GTA on which cenvat credit was taken is included in the assessable value of the excisable goods. This is evident from the excise invoice raised by the appellant. One of the sample invoice is reproduced below : - 4.1 From the perusal of the above invoice, it is observed that the freight charges was not separately 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 id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal consumers the goods are being cleared by them by adopting the valuation of the goods in terms of Section 4. The Appellants have annexed copies of excise invoice cum gate pass which shows that the prices are inclusive of freight and insurance and nothing extra has been charged. The goods are being cleared on FOR basis and all liabilities in respect of transportation of goods or damage to goods were on account of Appellants. They were liable for safe delivery of goods upto their customers doorstep. In such case when the sale of the goods is completed at the doorstep of the Customer or depot/ stockist as the case may be the point of sale shall be such doorstep. We find that the Circular No. 1065/4/2018 CX dt. 08.06.2018 issued by the CBEC in this context clarifies as under : 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) ELT 670 (SC) may be applied. Apex Court, in this case has upheld the principle laid down in M/s Escorts JCB (Supra) to the extent that 'place of removal' is required to be determined With reference to point of sale' with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reaches the doorstep of the Customers. Also we find that the consignment notes were raised upon the Appellant and they did not charge any amount except price of the goods from the customers. Thus in the light of above Circular we find that as the ownership of the goods remained with the Appellants till the goods reached to the customer's doorstep and the freight charges as well as damage (insurance) to the goods till destination were borne by the Appellant, they are eligible for the credit of service tax paid by them on outward freight. In case of CCE & CU Vs. Rooflt Industries Ltd. 2015 (319) ELT 221 (SC) the Hon'ble Apex Court held as under : 12. The principle of law, thus, is crystal clear. It is to be seen as to whether as to at what point of time sale is effected namely whether it is on factory gate or at a later point of time, i.e. when the delivery òf the goods is effected to the buyer at his premises. This aspect is to be seen in the light of provisions of the Sale of Goods Act by applying the same to the facts of each case to determine as to when the ownership in the goods is transferred from the seller to the buyer. The charges Which are to be added have put up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the conduct of the parties and the circumstances of the case. (3) Unless a different intention appears, the rules contained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer." 15. These are clear finding of facts on the aforesaid lines recorded by the Adjudicating Authority. However, the CESTAT did not take into consideration all these aspects and allowed the appeal of the assessee by merely referring to the judgment in the case of Escorts JCB Ltd. Obviously the exact principle laid down in the judgment has not been appreciated by the CESTAT. 16. As a result, order of the CESTAT is set aside and present appeal is allowed restoring the order passed by the Adjudicating Authority. From the above judgment it is clear that till the goods are handed over to the buyer, the cost is borne by the assessee or in other words where the goods are cleared on FOR basis the freight paid on outward transportation would qualify as "Input Service". As regard reliance placed upon by the revenue on the judgment of the Apex Court, we find that the Hon'ble Supreme Court was concerned only with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l with consequential reliefs, if any. MA (ORS) also stand disposed of." 7. In view of the aforesaid findings of facts given by the Tribunal relying upon the Board Circular No.1065/2018CX dated 8th June 2018 as well as the decision of the Supreme Court in the case of Ultratech Cement Ltd vs. Commissioner reported in 2015(37) STR 364(T) and in the case of Commissioner of Cus. & C. Ex. Aurangabad vs. Roofit Industries reported in 2015(319) ELT 221(SC), no question of law much less of any substantial question of law arises out of the impugned order passed by the Tribunal. The appeals, therefore, stand dismissed. No order as to costs." 4.2 This issue was further considered by the Hon'ble High Court of Kerala in Central Excise Appeal No.17 of 2019 in the case of Transformers and Electricals Kerala Ltd vs. Commissioner of Central Tax and Central Excise Kochi/ Bangalore wherein vide order dated 09.10.2024, the following order was passed:- "4. We have heard Sri.Abraham Markos, the learned counsel for the appellant as also Sri.Sreelal N. Warrior, the learned Standing Counsel for the respondent Department. On a consideration of the rival submissions, we find that while it may be a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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