TaxTMI 
TaxTMI 
2011 (5) TMI 142
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....val of final products by the respondent company. (The order of the original authority related to dispute on Cenvat on other services which are not relevant to the present proceedings.) Commissioner (Appeals), however, held that the GTA services used in the above circumstances has to be treated as input services and allowed the cenvat credit. Hence, the department is in appeal. 4. Learned DR, reiterating the grounds of appeal, submits that Board's circular No. 97/8/2007-ST dated 23-8-2007 covers clearance of goods within the country where goods are delivered by the assessee on the door step of the consignee. He submits that port of export cannot be treated as door step of the consignee. Referring to decisions of the Government of India, in revision matters, he submits FOB value cannot be taken as a transaction value in terms of section 4 of the Central Excise Act, 1944 and the transportation charges from the factory gate to port of export requires to be excluded. Transportation beyond factory gate did not qualify to be considered as input services and therefore, the order of the Commissioner (Appeals) in allowing the cenvat credit on outward transportation of finished goods upto ....
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....15-1-2009]; 8. CCE v. Adani Pharmachem (P.) Ltd. [2009] 19 STT 239 (Ahd. - CESTAT) 6.1 I have carefully considered the submissions from both sides and perused the records. The respondents is exporting their final products namely, the concentrates. The final products during the course of journey before reaching the foreign buyers, goes through the local transporters and gets unloaded at the port area and gets loaded into the ship and thereafter gets cleared from the port of destination and further gets transported to the place of the buyer. There could be contract between the buyer and seller for delivery at any place like their factory gate of the respondent, port area in India, port area in the foreign country or even the premises of the buyer abroad based on terms of the contract. When the goods are handed over to the buyers, at the factory gate, the factory gate is sought to be treated as place of removal. When the goods are handed over at the load port in India, the said port is sought to be treated as place of removal. By the same logic if the exporter takes responsibility to hand over at the foreign port, the port of import in the foreign country may ....
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....he transport charges incurred for transport of the goods from the place of removal is to be excluded. 6.6 The ownership of the goods is not the relevant criteria for determining the liability to duty which is at the time and place of removal and therefore, may not be relevant to determine whether certain services can be treated as input services or not. If certain goods are exported for exhibition abroad and brought back it would imply that the entire expenses incurred for taking out of the country and bringing back will be treated as part of input services as the ownership has not changed. 6.7 The claim that the concentrate yard in the port area is the place of removal and from the said point sales takes place is contrary to the facts and legal positions involved in sales activity. The commercial invoices are also issued with reference to "place of removal" and not at port area. 7. The term 'input or input services' are relative terms. The final products cleared by the respondent could become an input in the hands of the foreign buyer. The GTA services utilised for transportation of the goods which become inputs for the buyer will also become input services for the said b....
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....promotion", "market research" "procurement of inputs" and "inward transportation of inputs or capital goods" are also business activities, as understood in common parlance. Therefore, the term "activities relating to business" deserves to carefully understood and appreciated. In the inclusive part of the definition activities relating to business have been illustrated. The scope of activities relating to business should be understood by the specific activity mentioned after use of the phrase 'such as'. In the light of the above, there is no scope to treat the term 'outward transportation up to place of removal' as having been included under inclusive definition of "activities relating to business". 9. From the above, the following emerges :- "(a) removal of the final product takes place in this case at the factory gate and the liability to duty arises at the time and place of removal; (b) There is no legal requirement that the exporter should undertake transportation and transit insurance cover and deliver at the port except as part of the contract between the exporter and the foreign buyer. (c) The excise invoices and the commercial invoi....