9911796707
TMI Blog2010 (3) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on CHA services and outward transport services for transporting the goods from the factory gate to the designated port. Being aggrieved by the above order, the appellant preferred an appeal before the ld. Commissioner (Appeals). The ld. Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 what would be the place of removal in such cases. I find that the clarification issued by the CBEC in the circular cited above is very relevant and therefore para 8.2 of the circular is reproduced below:- In this connection, the phrase 'place of removal' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 benefit of CENVAT credit. Therefore any decision rendered in an individual case cannot be applied to another case unless the facts happen to be same. Therefore the decision of the Tribunal in M/s. Excel Crop Care Ltd.'s case cannot be considered and applied to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
