TMI Blog2013 (3) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... ious construction of the provisions, 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 it has to be held that the respondents were entitled to treat CHA service/GTA service as 'input services' under Rule 2(1) of the CENVAT Credit Rules, 2004 as these services were used for clearance of excisable goods from the 'place of removal'. Entitlement to CENVAT credit on 'Business Auxiliary Services' received from foreign and domestic commission agents - Held that:- There is no valid ground for the department's appeals as its plea that there was no nexus between the 'Business Auxiliary Services' and manufacture of the goods does not advance their case inasmuch as a nexus between 'Business Auxiliary Services' and clearance of the goods from the 'place of removal' has been established by the assessee. This nexus is enough for reckoning the service as 'input service' under Rule 2(1) of the CENVAT Credit Rules, 2004. It is not the case of the department that the assessee was not entitled to claim CENVAT credit of the service tax paid by themselves under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, the impugned orders are said to be unsustainable in law. 4. It is submitted by the learned counsel for M/s. Easwar Rubber Products that the question whether they were entitled to take CENVAT credit on CHA service is impliedly covered in their favour by the Division Bench's decision in the case of Kuntal Granites Ltd. v. CCE 2007 (215) E.L.T. 515 (Tri.-Bang.) and therefore the issue can be settled without waiting for any decision on the referred issue. 5. As regards the CENVAT credit taken on 'Business Auxiliary Service', it is submitted by the learned counsel that the services of commission agents were availed for collecting purchase orders for the manufacture and supply of goods and therefore such services would qualify to be 'input services' for the respondent. Insofar as 'Business Auxiliary Service' received from foreign commission agent is concerned, the service tax was paid by the respondent in the reverse charge mechanism and they were entitled to take credit thereof by virtue of Rule 3(1)(ixa) of the CENVAT Credit Rules, 2004. 6. I have also heard the learned Additional Commissioner (AR) on the above issue related to 'Business Auxiliary Service'. 7. I have carefu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee 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 the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the Customs frontiers of India." He points out that in respect of export goods, place of removal will be only when the documents are presented to the Customs Officers for export. The finding given by the authorities that the place of removal is factory is not correct in respect of export goods as the sale comes into effect only when the documents of title to the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to 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 to distinguish the above case by submitting that the above decision was rendered in respect of remission of duty and not in respect of CENVAT credit. This distinction is inconsequential inasmuch as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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