TMI Blog2013 (3) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... the period from June 2007 to September 2008 - Held that:- There is only one definition of place of removal under the Central Excise Act or the Rules framed thereunder whether for the purpose of valuation of excisable goods or for the purpose of determination of claim of CENVAT credit or for any other purpose whatsoever. The question whether the port of export could be considered to be place of removal of excisable goods was examined by the division bench in the KUNTAL GRANITES case [2007 (3) TMI 540 - CESTAT, BANGALORE] with reference to the definition of place of removal under Section 4(3) of the Central Excise as also to Section 5 of the Central Sales Tax Act. On a harmonious construction of the provisions, it was held that, in respect of the excisable goods cleared from factory for export and subsequently shipped from the port, the port of export could be held to be the place of removal . In view of this decision, it has to be held that the respondents were entitled to treat CHA service/GTA service as input services under Rule 2(l) of the CENVAT Credit Rules, 2004 as these services were used for clearance of excisable goods from the place of removal - in favour of assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 378/2011 dated 30.11.2011) was challenged by the department. 2. In the order passed by the original authority in the instant case, in the context of considering the assessee s reliance on the Tribunal s decisions in the cases of Stanzen Toyotetsu India (P) Ltd. and T. G. Kirloskar Automotive (P) Ltd., it was observed that both the decisions had been appealed against by the department and hence the issue decided therein had not reached finality. I find that, in the said cases, the appeals filed by the department have been dismissed by the Hon ble High Court vide 2011(23) STR 444 (Kar.) and [2011] 32 STT 251 (Kar.). 3. In the result, the order impugned in the first appeal requires to be set aside. It is ordered accordingly and the appeal is allowed. 4. In the second appeal, the challenge is against denial of CENVAT credit on CHA service used by the assessee for export of goods during the period from June 2007 to September 2008. The original authority allowed the credit to the assessee but the appellate authority set aside the lower authority s order. Hence the present appeal of the assessee. 5. After hearing both sides and considering their submissions, I find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed the demand of duty by Order-in-Appeal No. 5/06, dated 10-1-06 on the ground that assessee is required to discharge duty on the quantity of polished granite slabs which were destroyed in the accident as their prayer for remission of duty has been rejected by the Commissioner. The appellants contention is that in terms of Rule 21 of C.E. Rules they are entitled to claim remission if the goods were destroyed due to unavoidable accident at any time before removal of the goods. It is the submission of the assessee that the place of removal has been defined under Section 4(3)(c) of the Central Excise Act 1944 which is as under :- a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory. In this connection learned Counsel draws our attention to the provisions in Central Sales Tax Act. He refers to Section 5 of the Act which is noted herein below :- When is a sale or purchase of goods said to take place in the course of import or export.- (1) A sale or purchase of goods shall be deemed to take place in the course of export of the goods out of the territory of India only if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise Rules and Section 5 of the Central Excise Act. When the goods are removed from the factory for export purposes and the goods are destroyed due to unavoidable reasons, accident caused to the lorry, then in such a circumstances the goods are not deemed to have been removed from the factory gate in terms of Section 5 of the Central Sales Tax Act as sale has not been completed. Section 4(3)(c) of C.E. Act clearly explains that the place of removal is the premises from where excisable goods are to be sold after their clearance from the factory. In the present case, the goods were exported and when export documents are presented to the Customs office, then that is the place of removal as per Section 5 of C.E. Act. The same finding has been rendered by this bench in the case of Koeleman India Pvt. Ltd. v. CC, Bangalore [2005 (192) E.L.T. 866 (T-Bang.)]. There is no reason to take a different view from the same. The finding recorded by SMB in Ginni Filaments Ltd., is sub silentio without due consideration to the provisions of law. Hence Both the orders are set aside by allowing the appeal with consequential relief if any. The learned Superintendent (AR) made an attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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