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2014 (6) TMI 517 - CESTAT NEW DELHICenvat credit - place of removal in case of export - Shipping Services, Documentation charges and Terminating Handling charges - Refund of the service tax paid on the services in terms of Notification No. 41/2007-ST dated 06.10.2007 and subsequent Notification No. 17/2009-ST dated 07.07.2009 - Held that:- Tribunal in a number of decisions has held that inasmuch as for export purposes, the place of removal get extended to the load port, the Shipping services availed at the port have to be held as cenvatable input services within the meaning of clause (l) of Rule 2 of the Cenvat Credit Rules, 2004. Reference, in this regard, can be made to the Tribunal decision in the case of CCE V/s. Adani Pharmachem Pvt. Ltd. [2008 (7) TMI 102 - CESTAT AHMEDABAD]. It stands held that as ‘Port’ is place of removal for export cargo for the reasons that ‘sale’ takes place only when the bill of lading is issued by the shipping company, which is issued only after the goods are loaded into the ships, the port area becomes the place of removal. Regarding contention of the department that appellant should have claimed refund of service tax instead of availing the Cenvat credit - Held that:- two option having been extended to the assessee, it is his choice to avail any one such option. It is not the revenue's case that the notification in question, which permits refund, debars availment of credit, in case refund is not claimed. As such it is absolutely the assessee option to claim the Cenvat credit or to claim the refund. For the above proposition reliance is placed upon the Hon’ble Supreme Court in the case of Commissioner of Central Excise & Customs (Appeals), Ahmedabad Vs. Narayan Polyplast-[2004 (11) TMI 112 - SUPREME COURT OF INDIA] laying down that an assessee can choose to avail the benefit under any of the schemes, when benefits are available under two different schemes. Commissioner (Appeals) in the assessee own case, for a different period has held in favour of the assessee. It stands observed by the appellant authority that Cenvat credit was available to them and they cannot be pressurized to claim the refund in terms of notification No. 41/2007. He has also observed that the entire issue is revenue neutral inasmuch as if the appellant had not availed the credit, they were entitled to refund - Decided in favour of assessee.
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