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M/s. Rane Brake Lining Ltd. v/s The Commissioner of G.S.T. & Central Excise


Company & Directors' Information:- RANE BRAKE LINING LIMITED [Active] CIN = L63011TN2004PLC054948

Company & Directors' Information:- RANE PVT LTD [Active] CIN = U51220MH1920PTC000753

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

    Excise Appeal Nos. 40136 to 40140 of 2019 (Arising out of Orders-in-Appeal No. 436 to 440 of 2018) & Final Order Nos. 40791-40795 of 2019

    Decided On, 13 May 2019

    At, Customs Excise amp Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, THE HONOURABLE MR. P. DINESHA
    By, JUDICIAL MEMBER

    For the Appellant: S. Sridevi, Advocate. For the Respondent: L. Nandakumar, Authorized Representative.



Judgment Text

1. By these appeals, the appellant has questioned the denial of CENVAT Credit on the outward transportation of goods (GTA Services).

2. When the matter was taken up for hearing, Ms. S. Sridevi, Ld. Advocate appeared on behalf of the assessee and Shri. L. Nandakumar, Ld. AR appeared on behalf of the Revenue. I have considered the rival contentions, have perused the documents placed on record and have also gone through the various decisions/circulars/instructions relied on during the course of arguments.

3.1 The primary contention of Ms. S. Sridevi, Ld. Advocate for the appellant, is that the CENVAT Credit on the impugned input service was allowable since there was an agreement of sale on ‘FOR’ Destination basis; the Purchase Orders coupled with insurance and freight made it all the more clear that the property in goods was transferred to the buyer at the place of the buyer and therefore, the reversal by the impugned order was bad.

3.2 She further contends that these aspects have been gone into by the adjudicating authority who has, after considering all these aspects, held that the ownership and the responsibility of the appellant, being seller, continued till the completion of delivery to the customer at the place of the customer/buyer, which aspect was not the issue in the decided case of Commissioner of Central Excise & S.T. Vs. M/s. Ultra Tech Cement Ltd. reported in 2018 (9) G.S.T.L. 337 (S.C.) and accordingly, pleaded that the reversal of the allowed CENVAT Credit in the impugned Orders-in-Appeal was required to be set aside.

4.1 Per contra, Ld. AR appearing for the respondent submitted that in a batch of cases, the Division Bench of this Tribunal in the case of M/s. Mahle Engine Components India Pvt. Ltd. Vs. C.C.E. & S.T., Chennai-III & Ors. reported in 2019 (4) T.M.I. 635 – CESTAT Chennai has felt it proper to remand this issue to the file of the adjudicating authority to ascertain the nature of agreement/contract, if any, and to verify the same in the light of the judgements of the Hon’ble Supreme Court in the case of M/s. Ultra Tech Cement Ltd. (supra) and Commr. of Cus. & C.Ex., Aurangabad Vs. M/s. Roofit Industries Ltd. reported in 2015 (319) E.L.T. 221 (S.C.).

4.2 He also pointed out that the re-consideration was necessitated in view of the Board Circular No. 1065/4/2018-CX dated 08.06.2018.

5. Countering the above argument, Ld. Advocate Ms. S. Sridevi submitted that in this case, the adjudicating authority has already concluded based on the facts and materials available on record; that it was a case of sale on ‘FOR’ Destination basis, the freight and insurance for which were borne by the appellant and accordingly, drew attention to the findings at paragraphs 20 and 21 (at page 123 of the appeal paper) of the Order-in-Original dated 16.12.2018.

6.1 The Division Bench no doubt has considered the decisions of the Hon’ble Supreme Court in the case of M/s. Roofit Industries Ltd. (supra) and M/s. Ultra Tech Cement Ltd. (supra) and has observed as under :

“8. We find that M/s. Roofit Industries Ltd., (supra) was an earlier judgment which primarily went into the includibility of certain costs and incorporated the freight incurred for delivery of the goods to the place of buyer in the assessable value. When the sale of goods takes place at the buyer’s premises on delivery of the goods and not at the factory gate, such cost of loading, unloading etc., were includible in the assessable value for the purpose of valuation of the goods. On the other hand, the issue that was addressed in Ultra Tech Cements (supra) concerned the eligibility for availing Cenvat credit incurred on transport services from the place of removal to the buyer’s premises. This being so, the Roofit judgment basically concerns itself with includibility of certain costs incurred the delivery of the goods at the buyer’s point, whereas, on the other hand Ultra Tech Cements Ltd., (supra) is confined to eligibility of Cenvat credit in respect of transportation undertaken by the seller/manufacturer till the buyer’s premises.”

and has further observed that in the case of M/s. Ultra Tech Cement Ltd. (supra), the Hon’ble Court has held that GTA Services availed for transportation of goods from the place of removal to the buyer’s premises was inadmissible, on which there was no confusion; but, however, yielded to the contentions that the definition of place of removal in the CENVAT Credit Rules, 2004 and the decision of the Hon’ble Apex Court in M/s. Roofit Industries Ltd. (supra) will have bearing in deciding the place of removal, which fact was not analysed in the case of M/s. Ultra Tech Cement Ltd. (supra) wherein the eligibility of credit on the basis of place of removal was only answered.

6.2 This Bench finally concluded that the appellants should be given an opportunity “to establish which is the place of removal for them and then look into the eligibility of credit on GTA Services availed for outward transportation up to the buyer’s premises in the light of the above judgment and the Board’s Circular dated 08.06.2018”.

7.1 For the adjudicating authority to apply either M/s. Ultra Tech Cement Ltd. (supra) or M/s. Roofit Industries Ltd. (supra), the authority should first ascertain if it is a case of GTA simpliciter. On going through the judgement of M/s. Roofit Industries Ltd. (supra), the following observations of the Hon’ble Apex Court are relevant :

“8. A contextual examination of the aforesaid provision, for the purpose of the present case, would bring out the following the pertinent aspects :

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.

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(iii) The said normal price is to be seen at the time of delivery and place of removal.

(iv) ‘Place of removal’ is specifically defined and for our purposes, it is to be a place or premises from where the excisable goods are to be sold after their clearance from the factory and from where such goods are removed.

Thus, place of removal, in a given case, become determinative factor for the purpose of valuation.

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.

.

.

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 of 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 to the stage of the transfer of that ownership inasmuch as once the ownership in goods stands transferred to the buyer, any expenditure incurred thereafter has to be on buyer’s account and cannot be a component which would be included while ascertaining the valuation of the goods manufactured by the buyer. That is the plain meaning which has to be assigned to Section 4 read with Valuation Rules.

13. In the present case, we find that most of the orders placed with the respondent assessee were by the various Government authorities. One such order, i.e., order dated 24-6-1996 placed by Kerala Water Authority is on record. On going through the terms and conditions of the said order, it becomes clear that the goods were to be delivered at the place of the buyer and it is only at that place where the acceptance of supplies was to be effected. Price of the goods was inclusive of cost of material, Central Excise duty, loading, transportation, transit risk and unloading charges, etc. Even transit damage/breakage on the 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.”

(Emphasized by underlining, for clarity)

7.2 Further, the transactional value as interpreted by the Hon’ble Apex Court at paragraph 9 do not include freight, etc., if the sale is at the factory gate as agreed/understood, since, the transportation becomes the responsibility of the buyer. The point of sale, as observed by the Hon’ble Apex Court at paragraph 12, is required to be seen in the light of the provisions of the Sale of Goods Act and the transfer of ownership is as per paragraph 13 of the judgement where typically, the payment is held to be the decisive factor. In that case, 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. Based on the above, the Hon’ble Apex Court concluded that 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; 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.

8. A cumulative reading of the above observations with the finding of this Bench would require the appellant to first establish whether there

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was an agreement or the purchase order wherein it is made clear as to the terms; and the manufacturer was required to deliver the manufactured goods at the buyer’s premises; and then comes the transfer of ownership, which is to be ascertained in the light of the observations at paragraph 13 of M/s. Roofit Industries Ltd. (supra). Thus, without examining these aspects, the observations of the adjudicating authority at paragraphs 20 and 21, as pointed out by the Ld. Advocate for the appellant, cannot be sustained since the buyer’s premises where the goods are alleged to have been delivered would at the most become the place of acceptance of supplies. 9. In the light of the discussions as above, I am of the considered opinion that the matter requires re-adjudication in the light of the decision of the Hon’ble Apex Court and the order of this Bench (supra). Therefore, the impugned orders are set aside and the matters are remanded to the adjudicating authority for de novo adjudication. All the contentions are left open. 10. The appeals are allowed by way of remand.
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