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2019 (6) TMI 15 - AT - Service TaxCENVAT Credit - input services - GTA services - denial on the ground that Iron ore produced / manufactured is classifiable under CHH 26.01 of the CETA, 1985 and is exempt from duty of excise under Notification No.4/2006-CE dt. 01/03/2006 and hence not eligible for credit on input service - credit was denied also on the ground that the appellant cleared Iron ore from the factory to the port of shipment for export and therefore, in terms of Section 4(3)(c) of Central Excise Act, 1944, the place of removal of goods is the factory and the GTA service towards outward transportation is not eligible for credit as input service - scope of SCN. HELD THAT:- It is undisputed fact that the appellant produced and exported iron ore which is classifiable under Chapter 2601 of CETA 1985 and hence excisable but attracts nil rate of duty under Notification No.4/2006 dt. 01/03/2006 - Further the finding of the Commissioner that the appellants are not manufacturers is not sustainable in law as held by various decisions of the court holding this activity as amounts to manufacture. Further, this finding that the processes undertaken by the appellant do not amount to manufacture is contrary to the grounds made in the show-cause notice and is beyond the scope of show-cause notice. Also, the Department has not challenged the finding of the Commissioner(Appeals) holding that the appellant is eligible for CENVAT credit. In the absence of challenge by the Department, the eligibility of the appellant for CENVAT credit has attained finality. This issue has also been settled by various decisions wherein it has been consistently held that in the case of export, place of removal is the port from where the goods are exported and hence up to the place of port, credit is available - credit allowed - appeal allowed - decided in favor of appellant.
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