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2011 (10) TMI 335 - AT - Service TaxEntitlement of modvat credit of service tax paid on freight and handling charges (outward) paid to the Container Corporation of India and in respect of services of clearing agency - 100% EOU refund claimed - Held that - In view of Board s Circular No.97/8/2007-ST dt.23.8.07 and various decisions it is held that in case where export is on FOB basis, place of removal shall be load port and price included the transportation charges from the factory to load port. Inasmuch as the place of removal is load port, the charges incurred upto that area would be entitled to be considered as input service in terms of Rule 2 (1) (ii) of Cenvat Credit Rules, 2004, and as such is available for credit. See CCE & Service tax Bangalore vs ABB Ltd. & others (2011 - TMI - 203985 - Karnataka High Court) Decided against the Revenue.
Issues:
1. Disposal of multiple appeals against the same respondent. 2. Eligibility of modvat credit of service tax on freight and handling charges. 3. Interpretation of input service definition under Cenvat Credit Rules, 2004. 4. Applicability of Tribunal decisions on outward transportation charges. 5. Settlement of issue based on previous judgments. Analysis: 1. The appeals filed by the Revenue against the same respondent were disposed of together as the issue was identical. The Commissioner (Appeals) had ruled entirely in favor of the respondents, making cross objections unnecessary. The cross objections were treated as written submissions, and the COD applications were dismissed as unnecessary due to no time limit for filing written submissions. 2. The respondents, a 100% EOU manufacturing Terry Towels, filed a refund claim under Rule 5 of Cenvat Credit Rules, 2004. The Revenue objected to the modvat credit claimed on service tax for outward transportation and clearing agency charges post goods removal from the factory. The Revenue argued that such charges were not part of the input service definition, thus not eligible for credit, leading to proceedings against the respondents. 3. The appellate authority considered various Tribunal decisions and a Board's Circular, determining that charges incurred up to the load port for exports on FOB basis should be considered as input service eligible for credit. The authority relied on previous case laws like Kuntal Granites Ltd. vs. CCE-2007 and ABB Ltd. vs. CCE-2009, emphasizing that services for outward transportation up to the place of removal qualify as input service under Rule 2(1)(ii) of Cenvat Credit Rules, 2004. 4. The issue was deemed settled by previous Tribunal decisions such as CCE, Rajkot vs. Adani Pharmachem P.Ltd.-2008, Somaiya Organo Chemicals vs. CCE, Aurangabad-2011, and CCE. Nagpur vs. Ultratech Cement Ltd.-2010. The judgment relied upon by the Commissioner (Appeals) was confirmed by the Hon'ble Karnataka High Court, establishing the settled nature of the issue in favor of the respondents. 5. Considering the settled nature of the issue and the lack of merit in the Revenue's appeals, the Tribunal rejected the Revenue's appeals. The judgments relied upon by the Commissioner (Appeals) were not distinguished or questioned by the Revenue, further solidifying the decision in favor of the respondents. The COD applications and cross objections were disposed of accordingly.
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