TMI Blog2011 (2) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... Senior Departmental Representative and in view of the proposed order, it is felt that it is not necessary to accede to the request for adjournment. The relevant facts, in brief, are that the respondents are manufacturer of gherkins falling under Chapter 20 of the Central Excise Tariff Act, 1985 which they export. Their exports are made on f.o.b. basis. They availed of Cenvat credit, inter alia, on goods transport agency (GTA) services utilized by them. The basic dispute relates to the eligibility of credit on GTA services used for transporting the goods from their factory to the port of export. The credit was initially taken during the period from February 1, 2006 to April 30, 2007. As the respondents were not in a position to utilize t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the original authority. The learned Senior Departmental Representative takes me through the grounds of appeal. He submits that the decision of the Larger Bench of the Tribunal in the case of ABB Ltd. v. Commissioner of C. Ex., Bangalore [2009] 15 STR 23 (Tri.-LB) has been appealed against before the honourable High Court of Karnataka and the same stands stayed by the honourable Karnataka High Court. He also submits that in the facts and circumstances of the case port of export cannot be treated as place of removal as wrongly held by the Commissioner (Appeals). The learned Senior Departmental Representative produces copies of judgment relied upon by the Commissioner (Appeals) and submits that the same have been wrongly relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India [2011] 40 VST 64 (P and H); [2009] 236 ELT 431 (P and H). At this stage, it would be appropriate to reproduce the relevant portions of the Board's instructions dated August 23, 2007, which are as under: 8.2. In this connection, the phrase 'place of removal' needs determination taking into account the facts of an individual case and the applicable provisions. The phrase 'place of removal' has not been defined in Cenvat Credit Rules. In terms of sub-rule (t) of rule 2 of the said Rules, if any words or expressions are used in the CENVAT Credit Rules, 2004 and are not defined therein but are defined in the Central Excise Act, 1944 or the Finance Act, 1994, they shall have the same meaning for the CENVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the said place. The applicability of the Board's circular to the facts of the present case was also claimed before the original authority but it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and outward transportation up to the place of removal. It has also remain un-cohtroverted that for transportation purposes insurance cover has also been taken by the appellant which further shows that the ownership of the goods and the property in the goods has not been transferred to the seller till the delivery of the goods in acceptable condition to the purchaser at his door step. Accordingly, even the second condition that the seller has to bear the risk of loss or damage to the goods during transit to the destination stand fulfilled. 13. The third condition that the freight charges were integral part of the excisable goods also stands fulfilled as the delivery of the goods is 'for destination' price. This aspect has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
