2014 (2) TMI 41 - AT - Service Tax

Place of removal at the time of clearance of goods Port or Factory Held that - Following ORIENTAL CONTAINERS LTD Versus COMMISSIONER OF CENTRAL EXCISE. THANE 2012 (12) TMI 177 - CESTAT, MUMBAI - 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 - 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 - 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 - the assessee would be eligible for cenvat credit in respect of the services availed up to that place Decided against Revenue.

Summary

Issues:
1. Eligibility of cenvat credit for services availed after goods are cleared for export.
2. Determination of the place of removal for goods cleared for export.
3. Interpretation of relevant case law regarding the place of removal for export goods.

Issue 1: Eligibility of cenvat credit for services availed after goods are cleared for export:
The case involved a dispute regarding the eligibility of cenvat credit for services availed after the goods were cleared for export. The appellant had availed service tax cenvat credit for services related to the export of hand tools. The department contended that since the services were availed after the removal of goods from the factory gate, the appellant was not eligible for the credit. The jurisdictional Dy. Commissioner confirmed the cenvat credit demand, leading to an appeal.

Issue 2: Determination of the place of removal for goods cleared for export:
The main contention revolved around determining the place of removal for goods cleared for export. The Commissioner (Appeals) set aside the Dy. Commissioner's order, stating that in cases of export, the port of export should be considered as the place of removal. The appellant argued that the factory gate should be considered the place of removal, not the port of export. The Tribunal had to decide whether the port of export or the factory gate should be deemed as the place of removal for cenvat credit eligibility.

Issue 3: Interpretation of relevant case law regarding the place of removal for export goods:
The Tribunal considered various judgments cited by the respondent's counsel, which established that in cases of goods cleared for export, the port of export should be treated as the place of removal. The Tribunal referred to previous cases like Oriental Containers Ltd., Stangel Pickles & preserves, and others, which supported the view that cenvat credit could be availed for services used until the goods reached the port of export. The Tribunal upheld the Commissioner (Appeals) decision, dismissing the Revenue's appeal and confirming that the port of export should be considered the place of removal for export goods.

This detailed analysis highlights the key legal issues, arguments presented by both parties, and the Tribunal's decision based on the interpretation of relevant case law and statutory provisions.