TaxTMI 
TaxTMI 
2026 (7) TMI 1532
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....aid on the inputs/capital goods and service tax paid on the input services. During the disputed period, the appellants had used various taxable services for exportation of the finished goods. However, the department had objected to the issue of availment of CENVAT credit on the services viz., Clearing Charges (Export), Commission paid to overseas entity, Material Handling Charges, Terminal Handling Charges and Bank Charges, on the ground that the said services cannot be termed as 'input service' in terms of definition provided under the Service tax statue, for the purpose of availment of CENVAT credit. On the basis of such understanding, various show cause notices were issued by the department, which were culminated into the adjudication orders as well as in some of the cases, order-in-appeals passed by the Commissioner (Appeals). In respect of the present appeals filed before the Tribunal, the learned Commissioner (Appeals) as well as the administrative Commissioner had denied the CENVAT credit benefit on the ground assigned in the show cause notices. 3. The issue involved in the present appeals for consideration by the Tribunal is, whether the credit of service tax paid on Cle....
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.... Rule 2(1) of CCR, 2004; (ii) Illustrative agreement with M/s. Abdurahaman Abubker Sherif; (iii) Notification 2/2016- CE(NT) dated 03.02.2016; (iv) CBEC Circular No.943/04/2011-CX dated 29th April, 2011; (v) Circulars issued by dept. are binding; (vi) Judgements Material Handling Charges (Rs. 3085317) Material handling charges for which service tax is paid by the service providers relates to loading and unloading of finished goods in the factory premises and also at the various Depots, from where the goods are ultimately sold. (i) Clearance of final product upto the 'place of removal i.e. factory/depot and hence covered under Rule 2(1) of CCR, 2004; (ii) 'Place of removal' factory/depot; (iii) Judgements Terminal Handling Charges (Rs. 16698877) Terminal handling charges (Exports), i.e. charges incurred in the port area relating to export of finished goods. (i) In case of Export, 'Port of Export' is "Place of removal' and hence covered under Rule 2(1) of CCR, 2004; (ii) Section 4(3)(c) of the Central Excise Act, 1944; (iii) Section 5 of the Central Sales Tax Act; (iv) Section 23 and Section 39 of the Sale of Goo....
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.... of exports, for purposes of CENVAT credit of input services, the place of removal is the port or the airport from where the goods are finally exported. 3. The matter has been examined. It is seen that section 23 of the Sale of Goods Act, 1930 provides that where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract, and therefore, in view of the provisions of the Section 23 (1) of the Sale of Goods Act, 1930, the property in the goods would thereupon pass to the buyer. Similarly, section 39 of the Sale of Goods Act, 1930 provides that where, in pursuance of a contract of sale, the seller is authorized or required to send 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 2 buyer, or delivery of the goods to a wharfinger for safe custody, is prima facie deemed to be a delivery of the goods to the buyer. 4. In most of the cases, theref....
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....nt assessee and that the said goods could be considered having been destroyed before removal and the benefit of Remission of duty is allowable in such an exceptional situation in terms of Rule 21 of Central Excise Rules, 2002. Clause (iii) in Section 4(3)(C) for "Place of removal" was inserted w.e.f. 14-5-2003 vide Section 136 of the Finance Act, 2003 which has stipulated as under:- "(iii) 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." Hence, the provision under clause (iii) in Section 4(3)(C) for "Place of Removal" will be applicable in the case under consideration." 4.4 In view of the Board Circular and Larger Bench decision referred above, we hold that the place removal in case of the exports, would be upto the point when goods are loaded on the ship or the depot from where the goods are finally sold, and all the services that are received for exporting the goods till that point shall be covered by the definition of "input services" as per Rule 2(1) of The CENVAT Credit Rules, 2004. Hence the services of Custom House Agent (Clearing Charges), M....
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....ssessee and it would be effective retrospectively. The Hon'ble Supreme Court in the case of Vatika Township Pvt. Ltd. (supra), in the identical situation, held that if a legislation confers a benefit on some other person or on the public generally, and where to confer such benefit appears to have been the legislature's object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. The relevant portion of the decision in the case of Vatika Township Pvt. Ltd. (supra) is reproduced below:- "We would also like to point out, for the sake of completeness, that where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural p....