TMI Blog2020 (10) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... f input services used the expression from the place of removal . It is w.e.f. 1.4.2008 that, the word from stands replaced by the word upto . Thus it is only upto the place of removal that the input services availed are eligible for Cenvat Credit. This amendment no doubt had changed the entire scenario as the benefit which was earlier admissible even beyond the place of removal now gets terminated at the place of removal and the availability of Cenvat Credit of input tax paid gets closed at that place. Whether the services availed by a manufacturer at the port are the services availed by him upto the place of removal i.e. as to whether at the port is included in upto the port ? - HELD THAT:- The definition of Place of Removal makes it abundantly clear that the place where sale takes place or from where the property in goods passes from the seller to the buyer is called the place of removal. Though this definition is not specific for the exports but the above interpretation is clearly applicable to exports as well. Applying the same it becomes clear that in case of export of goods the property in goods passes from manufacturer to the buyer only after shipping bill is fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 398-400(CRM)/CE/JDR/2019 dated 25.4.2019 of Commissioner (A). The facts in brief for the impugned adjudication are: That the appellant who is engaged in manufacture of Zinc / Lead / Bulk Concentrate Sulphuric Acid, Zinc Cathode had availed various services at Kandla Port as that of C F, Testing, Sampling, etc. as were necessary in relation to the export of the aforesaid goods. The appellant accordingly availed the Cenvat Credit on such services. However, vide show cause notice no. V(26)15/436/08/3687 dated 23.12.2008, Department formed an opinion that the appellant had wrongly taken the input service tax credit amounting to ₹ 16,13,441/- in contravention of the provisions of Rule 3 4 of Cenvat Credit Rules 2004 (hereinafter referred as CCR Rules), during the period January 2008 to September 2008 on the aforesaid services provided to them at the Kandla port. Resultantly vide the said show cause notice the recovery of the credit availed along with the interest was proposed along with the proposal of the imposition of the penalty upon the appellant. The said proposal was initially confirmed vide order in original no. 15-17/2018-C.EX dated 29.8.2018. The said order was as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof is available to the manufacturer. In appellant s own case reported as CCE, Jaipur v. Hindustan Zinc Ltd. 2012 (12) TMI 105-CESTAT-New Delhi, the same has already been held. 5. Learned counsel further placed reliance upon the decision of Hyderabad Tribunal in the case of Nagarjuna Agri Chem Ltd. v CCT, Vishakhapatnam 2019 (22) GSTL 96 (Tri-Hyd.) where Cenvat Credit has been unequivocally allowed on all such services that were availed within the port premises prior to the export of goods. Learned Counsel also has submitted that the reliance of Commissioner (A) upon the Hon ble Apex Court s decision in the case of CCE ST vs. Ultratech Cement Ltd. 2018 (9) GSTL 337 (SC) is wrong in view of department s own circular no. 1065/4/18-CX dated 8.6.2018 wherein it has specifically been clarified that in the case of export, decision of Ultratech Cement Ltd. (Supra) is not relevant as the same was dealing with different facts i.e. about GTA services being availed beyond the place of removal w.e.f 1.4.2008. 6. Finally it is impressed upon that penalty is not imposable and that interest in not payable by the appellant for the reason that the appellant is legally entitled to avail t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under rule 2(L) of CCR Rules as follows: input service means any service,- (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal , and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal; 10. It is relevant to point here that the original definition of input services used the expression from the place of removal . It is w.e.f. 1.4.2008 that, the word from stands replaced by the word upto . Thus it is only upto the place of remova ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicate the above moot issue. However, it is observed that there is no dispute to the fact that place of removal is such a place where the property in goods actually passes from seller to buyer. It becomes clear that any service availed by the manufacturer till the point his right in the goods / property is passed on by him to his buyer is the input service. 13. Section 23 of Sale of Goods Act answers as to when such right passes away by saying that when the seller delivers the good to a buyer or to a carrier or to other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer and does not reserve a right of disposal, he is deemed to have unconditionally appropriated the goods to the contract and therefore, in view of section 23 Sub section 1 of Sale of Goods Act the property in goods would thereupon pass to the buyer. Section 39 of the Act in addition provides that wherein pursuance of a contract of sale the seller is authorised or required to sent the goods to the buyer, delivery of the goods to a carrier whether named by the buyer or not, for the purpose of transmission to the buyer or delivery of the goods to a wharfinger for safe custody is pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phrase upto the place of removal . 14. Needless to say, eligibility to Cenvat Credit of such manufacturer shall be determined accordingly at the port. Though upto cannot extend beyond the port. 15. The decisions relied upon by the learned DR are not found applicable to the facts and circumstances of this case because in Roofit industries (Supra) the period of demand was till June 2000 i.e. much before the impugned amendment in the definition of the input services. The Ultratech cement (Supra) decision is about GTA services were availed by the manufacturer beyond a place whereas the property in goods was already transferred to the buyer at factory gate itself. Seen from both these decisions, there is found no deviation from the fact that the relevant consideration to determine the place of removal is the place where the sale takes place i.e. place where property in goods passes from the seller to the buyer. As already held above,, in the present case, the property in the goods passed from the appellant to his buyer only at the port where they have obtained the Let export order and the services in question are such as were availed by the manufacturer prior getting the said or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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