TMI Blog2010 (3) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... are registered as 100% EOU, issued with Public Bonded Warehouse License under Section 58 and In Board Manufacturing sanction order under Section 65 of the Customs Act, 1962. The appellants are engaged in the manufacture and export of readymade garments under Chapter 6201 9990 of the Central Excise Tariff Act, 1985. The said manufacture had filed a refund claim under Rule 5 of Cenvat Credit Rules, 2004 of the unutilized credit on inputs and services on 15/10/2007 in a sum of Rs.7,77,145/- for the period from July, 2007 to September, 2007. The said claim was verified and after giving a personal hearing, the adjudicating authority passed an order disallowing a sum of Rs.2,89,384/- being the input service tax credit availed by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit on the service tax paid on the CHA service. It is undisputed that the CHA services were used for clearance of export goods. It is also undisputed that the export cargo were left the premises of the appellant and further formalities for the export of goods took place at the port. 7. I find that an identical issue has been gone into by the co-ordinate Bench of this Tribunal in the case of Adani Pharmachem P. Ltd. (supra). I may reproduce the ratio under:- 3. I have considered the submission from both the sides. There is no dispute that the goods have been sold on FOB/CIF basis. There is also no dispute that the service tax had been paid for the CHA services rendered. There are only two questions to be decided. The first is wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble goods would depend upon the place of removal as per the definition. In case of a factory gate sale, sale from a non-duty paid warehouse, or from a duty paid depot (from where the excisable goods are sold, after their clearance from the factory), the determination of the place of removal' does not pose much problem. However, there may be situations where the manufacturer/consignor may claim that the sale has taken place at the destination point because in terms of the sale contract/agreement- (i) the ownership of goods and the property in the goods remained with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision in the case of M/s. Excel Crop Care Ltd. was rendered on 30-4-2007 whereas the circular was issued by the CBEC on 23-8-2007 and therefore the ld. Member did not have the benefit of the Board's circular at that time. It is also noticed that in para 4, it has been stated in the order that ld. SDR submits that input services, should be strictly construed as per the definition. The services rendered at port by CHAs are after clearance of the goods from the factory gate and hence cannot be treated as input services . From this it emerges that the place of removal in that case, was factory gate. There is no doubt that in each and every case, it is necessary to consider as to exactly which is the place of removal before allowing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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