TMI Blog2020 (12) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... endered prior thereto were services upto the place of removal within the meaning of Rule 2(l)(ii) of the Cenvat Credit Rules. In the case of COMMISSIONER VERSUS DYNAMIC INDUSTRIES LTD. [ 2014 (8) TMI 713 - GUJARAT HIGH COURT] , the Hon ble Gujarat High Court has held that where exports are on FOB basis, place of removal is the port and not factory gate and hence since the impugned CHA, shipping agent and container services were utilised for purposes of export of final products and exporters could not do business without them, the service tax paid on these services availed was admissible. It has been further held that the words input services cannot be given restrictive meaning in view of the phrase means and includes used in Rule 2(l) of the Cenvat Credit Rules. The appellant has correctly availed of credit of the subject input services - Appeal allowed - decided in favor of appellant. - Excise Appeal No.70450 of 2013 - FINAL ORDER NO. 75647/2020 - Dated:- 14-10-2020 - SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) AND SHRI P.ANJANI KUMAR, MEMBER(TECHNICAL) Dr.Samir Chakraborty, Senior Advocate Shri Abhijit Biswas, Advocate for the Appellant (s) Shri T.Mondal, Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant had availed irregular and inadmissible Cenvat Credit amounting to ₹ 62,27,334.25 (including education cess, secondary and higher secondary cess) of the service tax paid on the said services since they were rendered beyond the place of removal, i.e., the factory gate and therefore the said services were not input services within the meaning of Rule 2(l) of the Cenvat Credit Rules. Invoking the extended period of limitation, upon alleging wilful suppression of fact, misstatement and contravention of the provisions of Rules 3 and 9 of the Cenvat Credit Rules knowingly with intent to evade payment of duty/tax, the show cause notice proposed disallowance and consequent recovery of the said cenvat credit amount of ₹ 62,27,334.25 along with interest thereon, in terms of Rule 14 of the Cenvat Credit Rules read with Section 11A(1)/(4) and Section 11AB respectively of the Act and imposition of penalty upon the appellant under Rule 15 of the Cenvat Credit Rules read with Section 11AC of the Act. (e) On filing of reply by the appellant, the Commissioner adjudicated the case and passed the impugned order. Besides upholding the allegations in the show cause notice, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10) ELT 526 (T-LB), para-13 (iv) Commissioner of C.Ex. Vs. Bhilai Engineering Corporation Ltd., 2016 (41) STR 774 (T) (v) Save Industries Vs. Commissioner of C.Ex. ST, 2016 (45) STR 551 (T). (b) Each of the services involved are activities integrally connected with the business of manufacture and clearance of excisable goods for export by the appellant from its factory at Jamshedpur upto the place of removal thereof as envisaged under Rule 2(l) of the Cenvat Credit Rules. The said services are also undisputedly services used in relation to the business of manufacture of the said goods, directly or indirectly. Hence, all the said services qualify as input service as defined in Rule 2(l) of the Cenvat Credit Rules. Contrary finding of the Commissioner is erroneous and based on misinterpretation of the definition of input service as contained in Rule 2(l) of the Cenvat Credit Rules and has been passed by ignoring the aforesaid binding decisions of Courts and Tribunal and is, thus, untenable and unsustainable. In support of this, reliance has been placed upon the following decisions:- (i) Commissioner of Central Excise Vs. Ultratech Cement Limited, 2010 (260) ELT 369 (Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. In the instant case the documents on record evidences that the subject goods were exported under bond by the appellant on FOB basis. Further, all the said services were and had to be rendered and/or availed at or prior to the port of shipment premises. None of these services were or can be rendered after the said goods are removed from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice , we find that the same ratio will be applicable to all three services which are in dispute before us since, all of them have been rendered in the port of export of goods. 12. By following the decision of the Hon ble High Court, we conclude that the appellant will be entitled to CENVAT Credit. Accordingly, the impugned orders are set aside and appeals are allowed. 10.2 In the case of Commissioner Vs. Dynamic Industries Ltd., 2014 (307) ELT 15 (Guj), also the Hon ble Gujarat High Court has held that where exports are on FOB basis, place of removal is the port and not factory gate and hence since the impugned CHA, shipping agent and container services were utilised for purposes of export of final products and exporters could not do business without them, the service tax paid on these services availed was admissible. It has been further held that the words input services cannot be given restrictive meaning in view of the phrase means .. and includes used in Rule 2(l) of the Cenvat Credit Rules. 10.3 The view taken in the aforesaid decisions is also the view and instruction of CBEC, as communicated by its Circular No. 999/6/2015- CX dated February 28, 2015. In p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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