TMI Blog2023 (11) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, the ratio of judgment is applicable to present case also. The Hon ble Gujarat High Court in the case of CENTRAL EXCISE VERSUS INDUCTOTHERM INDIA P LTD [ 2014 (3) TMI 921 - GUJARAT HIGH COURT] has held that in case of export of Cargo Handling Service, the Service Tax paid thereon is available as input services, as in such case, the place of removal is Port.Further, the judgment relied upon by the appellant has also allowed the credit of service tax paid on services received at the port. Board s Circular No. 97/8/2007-S.T. dated 23-8-2007 also recognizes the situation where the place of removal can be different from the normal place of removal and in such case, the credit of service tax paid on GTA services used for transportatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a lesser penalty to the tune of Rs. 30,72,269/-. 2. The brief facts of the case are that the Appellant are engaged in the manufacture of Pharmaceutical products and also availing the benefit of cenvat credit as per the provisions of Cenvat Credit Rules 2004. During the course of audit of cenvat credit documents, it was noticed that the appellant had availed the CENVAT Credit on CHA Services and Outward freight used in relation to export of goods. The said services appeared to be not related to the manufacturing activity but were related to the clearances of the final products beyond the place of removal. Therefore, as per revenue those services were not input services in terms of Rule 2(l) of Cenvat Credit Rules, 2004. Accordingly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Place of Removal is required to be determined with reference to Point of Sales . He also placed reliance on the following Judgments: (i) Suchitra Components Vs. CCE -2007(208)ELT 321 (SC) (ii) Commissioner Vs. Roofit Industries Ltd. -2015(319)ELT 221 (SC) 5. He further submits that vide Circular No. 999/6/2015-CX dtd. 28.02.2015, it was clarified that in the case of exports, for the purpose of Cenvat credit of input services, the place of removal is the port or the airport from where the goods are finally exported. In the present case, admittedly, the appellant have availed the services of CHA and GTA for export of goods. Thus the appellant is entitled for the cenvat credit of Service tax paid on such services. 6. He a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals related to revenue s appeal. 9. We have carefully considered the submissions made by both the sides and perused the records. We find that there is no dispute that the goods were removed for export and disputed services i.e CHA service and outward transportation service were availed by the appellant in relation to export of goods. The main issue involved in the case is whether the appellant is eligible to avail CENVAT credit on service tax paid on CHA Service and GTA service which are for outward transportation in respect of export goods, upto port of export. 10. The appellant has contended that in case of export actual sale take place at the port of export. The sale is treated to be completed only after the transfer of property/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the credit of service tax paid on GTA services used for transportation of goods upto place of removal is admissible. As per Section 4(3)(c)(iii) of the Central Excise Act, 1944, place of removal includes any other place or premises from where the excisable goods are to be sold after their clearance from the factory. As per definition of sale, a transaction is recognized as sale only when a seller has realized or has a high chance of realizing payment against delivery of goods. In case of export, goods are treated as sold only when they leave the shores of India and the exporter realizes payment (through letter of credit) after producing proof of goods having left the shores of India. In case of export goods, therefore, the place of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tilised for purpose of export of final products and exporters could not do business without them and hence service tax paid on these services availed till goods reached port was admissible and that the input service cannot be given restrictive meaning in view of means . and includes used in definition in Rule 2(l) of Cenvat Credit Rules, 2004 14. In this position of law on the issue in hand, we are of the considered view that the Cenvat credit on the outward GTA and CHA is admissible. We therefore, set aside the impugned order and allow appeal of appellant with consequential relief, if any, in accordance with law. 15. As regard revenue s appeal firstly, since demand itself is not sustained, penalty will not stand, secondly revenue s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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