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TMI Blog2024 (12) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... MMISSIONER OF CENTRAL EXCISE CGST, GAUTAM BUDH NAGAR [ 2023 (10) TMI 1464 - CESTAT ALLAHABAD] where it was held that 'Once it is established that the appellant were paying duty on the value at which the bikes were sold from the direct shop at Kolkata then there cannot be any reason for not allowing the Cenvat Credit in respect of the services received at depot.' The factual position in the appeal decided by the Allahabad Bench and the present appeal is identical. In fact, the appellant in both the appeals is India Yamaha Motor Private Limited. There are no good reason to take a different view from the view taken in Allahabad Bench of the Tribunal and, accordingly, it is held that the place of removal would be the direct shop at Kolk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealers and hence, the same is the direct sale points of their company, which should be treated as place of removal in the instant case. The Assessee has further submitted that the place of removal of the goods shall be the place where the title in the goods passes on from the seller to the buyer, which in their case, is direct shop at Kolkata. In support of their contention, they have referred to the provisions of Section 4 (3) (c) of the Central Excise Act, 1944 and also relied upon various judgments and circulars. 15.4 As per the above-definition, it is clear that either factory premises or warehouse or depot can be the place of removal . Hence, the issue is largely depending upon the facts of case, rather than of the interpretation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods from the manufacturing unit at Noida to the direct shop at Kolkata; whether such transportation cost and other such ancillary expenses are included in the transaction value of the said manufactured goods etc. Hence, in the absence of any such substantiation by the assessee, the said direct shop at Kolkata cannot be considered as place of removal for the assessee. 15.7 Since it has been concluded now that the said direct shop at Kolkata cannot be considered as the place of removal for the Assessee, hence, as a corollary, it implies that such Rent, Repair and Maintenance services cannot be said to have been used by the Assessee, directly or indirectly, in or in relation to the clearance of such final products upto place of removal . Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision are reproduced below :- 4.7 Thus it is settled position in law that in case of sale of goods from any premises other than at the factory gate the value of excisable goods for payment of duty is to be determined at the place of removal i.e. the depot/ direct shop, premises of consignment agent or by whatever name it is called. 4.8 Rule 2 (l) as noted above provides that the input service is the services used directly or in-directly, in or in relation to manufacture and clearance of the finished products up to the place of removal. Undisputedly, the place of removal in the present case is the direct shop in Kolkata and the claim of appellant that the duty is paid on the value determined on the basis of sale value from the direct shop i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were finally sold by the appellant is not the place of removal as per Rule 2 (qa) of the CENVAT Credit Rules, 2004. In our view the expenses incurred on rent, repair and maintenance of the direct shop cannot be excluded from the assessable value for the payment of Central Excise Duty and for the same reason the service tax paid in respect of these services received at depot cannot be denied . 9. The Allahabad Bench also examined the decision of the Mumbai Bench of the Tribunal in Metro Shoes Pvt. Ltd. versus Commissioner of Central Excise [ 2018 (10) S.T.R. 382 (Tri. Mumbai)] as also the decision of the Tribunal in DSCL Sugar versus Commissioner of Central Excise, Lucknow [ 2014 (34) S.T.R. 58 (Tri. Del.)] and observed as follows :- 4.14 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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