TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 438
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....vention 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 assailed before the Commissioner (A) who vide the order under challenge allowed the Cenvat Credit, of service tax paid on services provided at Kandla port during the period January 2007 to March 2008, on the ground that till 1.4.2008 the services from the place of removal were the input service eligible to credit. But disallowed the Cenvat credit taken during the period April 2008 to September 2008 on the ground that w.e.f. 1.4.2008 the services which are availed only upto the place of removal are input services eligble to credit. However, the appeal has been rejected. Being aggrieved, thereof, the appellant is before this Tribunal. 2. I have heard Shri Hemant....
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....TL 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 the Cenvat Credit on the impugned services. Once the credit is admissible to him, the question of any penalty or interest does not arises. In view of these submissions the learned counsel has prayed for the order under challenge to be set aside and appeal in hand to be allowed. 7. While rebutting these arguments, it is submitted by the learned DR that there is no denial for port to be the place of removal in case of exports. However, for availing the Cenvat Credit only such services can be admissible for availing Cenvat Credit as are received upto the place of removal i.e. port. However, para 8 of the impugned order is the sufficient clarification and a reasonable just....
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.... 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 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. 11. The moot issue to be adjudicated herein is as to 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". For the purpose, definition of place of removal acquires importance. This definition has not been given in CCR Rules 2004. In ter....
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....riated 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 prima facie deemed to be delivery of the goods to a buyer. Therefore, it appears that handing over of the goods to the carrier /transporter for the further delivery of the goods to the buyer with the seller not reserving the right of the disposal of the goods, would lead to passing of property from the seller to the buyer. As per the definition of place of removal as mentioned above, it generally happens at the factory gate or the warehouse or the depot of the manufacturer, hence any service availed by the manufacturer beyond this point will not be eligible for cenvat credit on input tax paid by him as has been held by Hon'ble Apex Court in the Ultratech (Supra). However, in case of clearance of ....