TMI Blog2024 (3) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... that the goods were agreed to be exported on FOB basis. FOB in shipping terms indicate who owns the goods during transit and who pays for the shipping associated fees and other freight charges. There is nothing on record to show that the appellant as manufacturer-exporter has incurred the expenditure till the time the goods are put on the vessel at the Gateway Port. As the appellant had also impressed upon the concept of the sale, it is observed that the said aspect has already been decided by the Hon ble Apex Court in the case of COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [ 2015 (10) TMI 613 - SUPREME COURT] , the Hon ble Apex Court in the said case has held i nvoices were prepared only at the factory directly in the name of the customer in which the name of the Insurance Company as well as the number of the transit Insurance Policy were mentioned. Above all, excise invoices were prepared at the time of the goods leaving the factory in the name and address of the customers of the respondent. When the goods were handed over to the transporter, the respondent had no right to the disposal of the goods nor did it reserve such rights inasmuch as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Akshay Agarwal, Advocates for the appellant and Shri Bhagwat Dyal, Authorized Representative for the Department. 3. Learned Counsel for the appellant has mentioned that the appellant clears the manufactured goods in the domestic as well as in the export market. The export goods are cleared with the term of delivery as free on board (FOB). The invoices raised by the appellant on overseas customers evidences the said term of deliveries. Thus, it is clear that the appellant gets inland haulage charges for transportation of export goods from inland container freight station (ICD) to sea port of loading and avails the credit of service tax paid on said Inland haulage charges. 4. While impressing upon the definition of Input Service which are eligible for availment of cenvat credit, as defined under Rule 2(l) of CCR, 2004, Learned Counsel for the appellant has mentioned that to qualify as an input service, the service under consideration must fall within meaning clause or inclusive clause and it should be outside the exclusion clause of the definition under Rule 2(l) of CCR, 2004. Decision of Larger Bench of this Tribunal in the case of ABB Ltd. vs. CCE, reported as 2009 (15) STR 23 (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods for export. Since exporter exercise the right of disposal of goods till delivery across the ships at the named port of despatch, the said port becomes the place of removal even in terms of incoterms FOB. Learned Counsel has also relied upon the decisions of this Tribunal in the case of Unitech vs. CCE reported as 2018 (4) TMI 760 (Tri. All.) and Tinplate Company of India Limited vs. CCE ST, 2020 (12) TMI 846-CESTAT Kolkata vide which the cenvat credit on GTA Service on transportation for export of goods from the factory gate to the port of export was held available, the port of export being the place of removal. 7. The demand in question is otherwise mentioned to be entirely revenue neutral. Finally, it is submitted that there is no suppression of facts as the case has been made out from the appellant s own document extended period has wrongly invoked while issuing the impugned show cause notice. The decision of Hon ble Supreme Court in the case of Padmini Products vs. CCE reported as 1989 (43) ELT 195 (SC) has been relied upon. With the submissions, the order under challenger is prayed to be set-aside and the appeal is prayed to be allowed. 8. Learned Authorized Representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service or not? Foremost, we need to know the definition of Input Service , the definition reads as follows:- Rule 2(1): Input Service means any service,- (i) used by a provider of taxable service for providing an output service; or (ii) used by a 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 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, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking. credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal; 11. The definition also has an exclusion clause but apparently the activity in question does not fall under the said exclusion clause. The definition of input service is expressed in the form of 'means' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout payment of duty; (iii) 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 from where such goods are removed 13. Though, subsequent to 11.07.2014, Rule 2(qa) clause of credit rules also define place of removal but the said definition is verbatim of above definition. No doubt, the appellant has relied upon the provisions of Sale of Goods Act, specifically, section 19 of the said Act to impress upon that the place of sale is also the place of removal. Various decisions have also been relied upon to show that the shipping port is the place where the responsibility of the exporter with respect to the goods to be exported comes to an end and as such the shipping port where is issued the out of charge order/Let export order becomes the place of removal. However, we observe that in the present case, the distinguished admitted fact is that the Let Export order is issued at ICD Garhi harsaru. The let export order is a document which the customs department issues after the complete set of formalities being complied with by the exporter including filing of shipping bill alongwith all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect has already been decided by the Hon ble Apex Court in the case of Ispat Industries Ltd. reported as 2015 (10) TMI 613 (SC), the Hon ble Apex Court in the said case has examined as under:- As has been seen in the present case all prices were ex-works , like the facts in Escorts JCB's case. Goods were cleared from the factory on payment of the appropriate sales tax by the assessee itself, thereby indicating that it had sold the goods manufactured by it at the factory gate. Sales were made against Letters of Credit and bank discounting facilities, sometimes in advance. Invoices were prepared only at the factory directly in the name of the customer in which the name of the Insurance Company as well as the number of the transit Insurance Policy were mentioned. Above all, excise invoices were prepared at the time of the goods leaving the factory in the name and address of the customers of the respondent. When the goods were handed over to the transporter, the respondent had no right to the disposal of the goods nor did it reserve such rights inasmuch as title had already passed to its customer. On facts, therefore, it is clear that Roofit's judgment is wholly distinguishabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
