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2023 (12) TMI 176 - CESTAT ALLAHABADCENVAT Credit - input service - interpretation of Rule 2 (l) of the Cenvat Credit Rules, 2004 - place of removal - HELD THAT:- Rule 2 (l) provides that the input service is the services used directly or in-directly, in or in relation to manufacture and clearance of the finished products up to the place of removal. Undisputedly, the place of removal in the present case is the direct shop in Kolkata and the claim of appellant that the duty is paid on the value determined on the basis of sale value from the direct shop is not disputed in the impugned order. Interestingly, Commissioner (Appeals) says in his order that adjudicating authority in his earlier order states that direct shop at Kolkata belongs to M/s Frostees Export India Pvt. Ltd. and for that reason it cannot be place of removal while doing so Commissioner (Appeals) has failed to examine the basic question whether the goods were sold by the appellant from the direct shop which may be owned by M/s Frostees Export India Pvt. Ltd. or any other person. Once it is established that the appellant were paying duty on the value at which the bikes were sold from the direct shop at Kolkata then there cannot be any reason for not allowing the Cenvat Credit in respect of the services received at depot. Thus, there is no justification for holding that the direct shop at Kolkata from where the bikes were finally sold by the appellant is not the place of removal as per Rule 2 (qa) of the CENVAT Credit Rules, 2004 - the expenses incurred on rent, repair and maintenance of the direct shop cannot be excluded from the assessable value for the payment of Central Excise Duty and for the same reason the service tax paid in respect of these services received at depot cannot be denied. There is no justification for not allowing the credit in respect of input services received at the direct shop in Kolkata from where the goods are finally sold by the appellant after clearance from the factory. There is no merit in the impugned order and the same is set aside. As the demand for duty is set aside the demand for interest and penalty imposed is also set aside - Appeal allowed.
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