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Judgment
Show Cause Notice No. & date,"Amount of Cenvat credit
disputed",Period
V(84)/15-05/11-12/Adj.II dated
15.3.2012","11,73,982/-","April 2008 to September,
2011
LTU/ST/Avtec/Pitampur/50/2012
dated 15.09.2012","5,75,889/-","October, 2011 to August,
2012
LTU/CEX/Avtec/20/2013d ated
3.6.2013","3,44,572/-","August, 2012 to November,
2012
(iv) CCE, Kolkata-VI Vs, ITC Ltd. â€" 2013 (291) ELT 377 (Tri.-Kolkata).",,
In view of the above submissions, it is prayed that demand for extended period along with penalty may be dropped.",,
Learned Departmental Representative relies on the impugned order.,,
Having considered the rival contentions, on query by this Tribunal, the Counsel for the appellant pointed out the terms and conditions of sale",,
between the appellant manufacturer and their buyer - M/s General Motors India Pvt. Ltd. As per the ‘supply and operation agreement‟ between,,
the parties, the salient features are as follows:",,
“5.1 The commercial terms and conditions for the purchase by GMI of Powerunits from HML are set forth in the Purchase Order;,,
5.2 The prices for the Powerunits shall be as set forth in the respective Purchase Orders and are at ex-HML‟s factory at Pithampur. All,,
other taxes and duties including but not limited to Excise duty and sales tax whether leviable at present or in future, shall be borne by GMI",,
in accordance with provisions of Section 64A of Sale of Goods Act, 1930. Transportation and handling charges incurred by HML shall be",,
reimbursed by GMI. Payment for all the Powerunits supplied shall be made by the 2nd day of the second month following the date of receipt,,
of Powerunits by GMI. HML shall raise necessary invoice for the purpose. For example supplies in July will get paid by 2nd of September;,,
5.3 the Standard Operating Procedure (SOP) will be agreed and signed between GMI and HML at a later date, which shall cover issues",,
related to replacement of short supply/damages/scheduling/inventory norms and various documentation requirement. The SOP when signed,,
will form an integral part of this Agreement.,,
5.4 The parties understanding on procedure relating to commercial terms such as understanding on excise duty, sales tax, CENVAT Entry",,
tax, CVD tax credits and other issues relating to importation, transportation and sales documentation are set forth in Schedule ‘Eâ€.â€",,
Further, on perusal of the excise invoices issued by the appellant to their buyer M/s General Motors India Pvt. Ltd., being invoice dated 31 July,",,
2012, it is evident that freight is not a part of the sale price, and freight has been shown separately after charging the excise duty on the ex-factory",,
price. Thus, under the Sale of Goods Act, in view of the terms of sale between the parties, the property in the goods is transferred on the event of",,
goods being delivered to the transporter by the seller for delivery to the buyer, unless otherwise so stipulated in the contract. Accordingly, in the facts",,
and circumstances, the place of removal is the factory gate of the appellant seller. Accordingly, the appellant have been rightly denied Cenvat credit",,
on merits.,,
As regards, limitation, I find that the appellant is registered unit and have been in LTU for most of the period under dispute. LTU was created by",,
the Department to cater to the large assesses for smooth assessment and compliance of the tax liability. In LTU there are few number of assesses, as",,
compared to the normal Commissionerate and hence the Department has a better grip and knowledge about affairs of a manufacturing unit in the,,
LTU jurisdiction. Further, it is an admitted fact that the appellant have been filing regular returns with the Department. Further, it is evident in view of",,
various Circulars issued by the Department from time to time being Circular No. 988/12/2014-CX. dated 20.10.2014, judgment of Karnataka High",,
Court in the case of Commissioner of C. Ex. Cus. & ST, Belgaum Vs. Vasavadatta Ltd. -2011 (24) STR 542 (Kar.), Commissioner of C. Ex. & ST,",,
LTU, Bangalore Vs. ABB Limited - 2011 (23) STR 97 (Kar.), Circular No. 1065 dated 8 June, 2018 and the ruling of Division Bench in Sanghi",,
Industries Ltd. (supra). It is evident that the issue was highly debatable, and open to more than one interpretation. Accordingly, I hold that there is no",,
mala fide on the part of the appellant in having taken credit, which has been duly recorded in the books of account ordinarily maintained in the normal",,
course of business. Accordingly, I hold that the extended period of limitation is not invokable in the facts and circumstances. Accordingly, the demand",,
for the extended period of limitation is set aside. In the facts and circumstances, all penalties imposed are set aside. Thus, the appeal is allowed in part",,
and the impugned order stands modified.,,
Appeal is allowed by statistical purposes.,,
(Pronounced in Court on 12.08.2021),,