Custom, Excise & Service Tax Tribunal
Cce, Ludhiana vs M/S. Ambika Overseas on 23 April, 2013
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision:23.04.2013
Honble Shri Rakesh Kumar, Member (Technical)
1. Whether Press Reporters may be allowed to see the order for
Publication under Rule 27 of the CESTAT (Procedure) Rules, 1982.
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
Excise Appeal No.E/1084/2011- Excise Branch
[Arising out of Order-in-Appeal No.17/CE/LDH/2011 dated 24.01.2011 passed by the Commissioner of Central Excise (Appeals), Chandigarh].
CCE, Ludhiana Appellant
Vs.
M/s. Ambika Overseas Respondent
Appearance: Rep.by Shri R.K. Mathur, AR for the appellant.
Rep. by Shri Ravi Chopra, Advocate for the respondent.
Coram Honble Shri Rakesh Kumar, Member (Technical) Final Order No.56232/2013 Dated:23.04.2013 Per Rakesh Kumar:
The respondents are manufacturers of hand tools chargeable to central excise duty. A part of the production of hand tools is exported under bond as well as on payment of duty under rebate claim. In respect of the goods cleared for export, the appellant availed service tax cenvat credit of the services of the Customs House Agent, freight forwarder and GTA to the tune of Rs.2,39,875/-. While the services of Customs House Agent was used in connection with clearance of the export goods at the port of export, the services of freight forwarder was availed for arranging the transportation of the goods from the factory to the port of export and the GTA service was availed for transportation of the goods from the factory to the port of export. The department being of the view that since place of removal of the goods is the factory gate and the services, in question, have been availed after removal of the goods, the respondent are not eligible for cenvat credit. On this basis, after issue of show cause notice, the jurisdictional Dy. Commissioner vide order-in-original dated 31.05.2010 confirmed the cenvat credit demand of Rs.2,39,875/- along with interest and imposed penalty of Rs.10,000/- on the respondent.
2. On appeal being filed to the Commissioner (Appeals), this order of the Dy. Commissioner was set aside vide order-in-appeal dated 24.1.2011. The Commissioner (Appeals) relying upon the several judgements of the Tribunal held that in such a case it is the port of export, which has to be treated as place of removal and hence, the respondent would be eligible for cenvat credit of the services in question. Against this order of the Commissioner (Appeals), this appeal has been filed by the Revenue.
3. Heard both the sides.
4. Shri R.K. Mathur, Ld. Departmental Representative assailed the impugned order by reiterating the grounds of appeal in the Revenues appeal. He emphasized that even in respect of clearances of the finished goods for export under bond or under rebate claim, it is the factory gate, which is the place of removal and not the port of export and hence, the respondent would not be eligible for cenvat credit in respect of the services availed after removal of the goods. She, therefore, pleaded that the impugned order is not correct.
5. Shri Ravi Chopra, Advocate, ld. Counsel for the respondent pleaded that the issue as to whether in case of clearance of the goods from the factory for export, the place of removal is the port or the factory, is no longer res integra, that the Tribunal in a series of decisions in the cases of Oriental Containers Ltd. reported in 2012 (28) STR 397 (Tribunal-Mumbai), CCE, Madurai Vs. Stangel Pickles & preserves reported in 2011 (22) STR 396 (Tribunal-Chennai), Meghachem Industries reported in 2011 (23) STR 472 (Tribunal-Ahmd.), MTR Foods Ltd. reported in 2011 (22) STR 342 (Tribunal-Bang.) and Modern Petrofils Vs. CCE, Vadodara reported in 2010 (18) STR 625 (Tribunal-Ahmd.) has held that in case of the goods cleared for export, it is the port of export which is the place of removal and the assessee would be eligible for cenvat credit of the services availed after the removal of the goods from the factory till their export from the port of export, that same view has been taken by the Tribunal in the cases of CCE, Surat Vs. Colour Synth Industries Pvt. Ltd. reported in 2009 (14) STR 309 (Tribunal-Ahmd.), CCE, Rajkot Vs. Rolex Rings P. Ltd. reported in 2008 (230) ELT 569 (Tribunal-Ahmd.) and CCE, Ahmedabad Vs. Finecare Bio-systems reported in 2009 (16) STR 701 (Tribunal) and that in view of this, there is no infirmity in the order.
6. I have considered the submissions from both the sides and perused the records. In this case, there is no dispute that the services, in question, have been availed in respect of the goods cleared for export. While the GTA services and freight forwarding services have been availed in respect of the transportation of the goods from the factory gate to the port of export, the services of Customs House Agent has been availed for clearance of the goods at the port. It is also not in dispute that the export has been made on FOB/CIF basis. The Tribunal in a series of judgements, as cited by the ld. Counsel for the respondent, has held that when the goods cleared from factory are exported on FOB/CIF basis, it is the port of export, which would be the place of removal and the assessee would be eligible for cenvat credit in respect of the services availed up to that place. In view of the above discussion, I hold that there is no infirmity in the impugned order. The Revenues appeal is dismissed.
( Rakesh Kumar ) Member (Technical) Ckp.
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