BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.04.2024 CORAM:

THE HONOURABLE MR.JUSTICE C.SARAVANAN W.P.(MD) No.17906 of 2020 and W.M.P.(MD) No.14933 of 2020 M/S.Hi Tech Arai Pvt Ltd., represented by its Senior Manager – Taxation T.Raathakrishna No.33, Sarojini Street, Chinna Chokkikulam, Madurai. ... Petitioner /vs./

The Assistant Commissioner of Central Goods and Service Tax and Central Excise, Trichy II Region, No.1, Williams Road, Contonment, Trichirappalli 620 001. ... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari, calling for the records in order in Original No.4 and 05/2020 C.Ex dated 30.09.2020 issued by the Respondent and quash the same is wholly without jurisdiction and clear violation of circular No. 1065/4/2018-CX dated 08.06.2018 issued by the Central Board of Indirect Taxes and Customs.

For Petitioner : Mr.N.Sudalaimuthu For Respondent : Mr.R.Nandha Kumar Senior Standing Counsel

ORDER

The petitioner has filed this writ petition for a Certiorari calling for the records in order in Original Nos.4 and 05/2020 C.Ex dated 30.09.2020 passed by the respondent and to quash the same.

2.This is a second round of litigation in respect of the demand that was confirmed earlier in respect of the show cause notice dated 28.04.2016, vide Order in Original Nos.3 and 4 of 2018 dated 29.03.2018. The petitioner had earlier preferred an appeal before the Appellate Commissioner against the aforesaid order, which culminated in an adverse order of the Appellate Commissioner dated 09.01.2019 in Order in Appeal Nos.3 and 4 of 2019 – TRY (Cex).

3.Aggrieved by the aforesaid order, the petitioner preferred further appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT), Chennai in Excise Appeal Nos.40626 and 40627 of 2019.

4.By an order dated 21.02.2020 bearing Final Order Nos.40500-40501 of

2020, the Tribunal allowed the appeal by way of remand with the following observations:-

“5.Ld. Counsel has produced before me sample invoice/purchase orders to contend that they have paid Central Excise duty after including freight charges; that it is also argued by her that since the goods have been delivered at the buyer's premises without collecting freight charges from the customer and the same is borne by the appellant, they are eligible for credit of service tax paid on the freight charges upto the buyer's premises. I find that to peruse the documents relating to the issue under consideration it is best to remit the case back to the adjudicating authority who shall look into the documents furnished by the appellant to determine the place of removal. If the appellant has included the freight charges in the transaction value while discharging the excise duty, they would be eligible for the credit of service tax paid on freight charges incurred by them upto the buyer's premises. The decision in the case of Rooft Industries Ltd. (supra) would then apply. From the above, I hold that the impugned order is set aside and the appeals are remanded to the adjudicating authority for fresh consideration after giving an opportunity to the appellant to furnish documents.”

5.Pursuant to the aforesaid remand order, the respondent has now passed the impugned order re-confirming the demand proposed in the show cause notice issued to the petitioner. The relevant portion of the impugned order reads as under:-

“18.In view of the above decisions of the Courts and the Central Excise Act and Rules, I find that 'place of removal' will not include buyer's premises. M/s. Roofit Industries Ltd. reported in 2015 (319) E.LT 221 (S.C.) covering the period 1.1.96 to 30.06.2000 before the amendment of Rule 2(1) of the Cenvat Credit Rules, 2004 and before the insertion of Rule 2(qa) of the CENVAT Credit Rules, 2004 The Rule 2(qa) inserted vide Notification No. 21/2014-Central Excise (N.T.) on July 11, 2014.

19.In the instant case, the basic issue of the admissibility of Cenvat Credit of Se