2017 (5) TMI 1378 - AT - Central Excise

CENVAT credit - scope of input service - services related to handling of goods outside the factory, but up to and until export of goods - Held that - the goods are permitted to be deposited without payment of duty at the port of export, it would appear that the place of removal in relation to exported goods is not the factory but beyond. Any service used till the place of removal would qualify as an input service. There can be no cavil about the availment of credit of any tax that has been paid in connection with such input services. There can be no dispute that the services on which credit of tax paid was taken had been rendered to the respondent. It would also be natural for any assessee to take the credit of any tax that has already been paid in connection with their business activities. To the extent that this credit has been taken on services that are not ineligible for inclusion as input services , the availment of credit cannot be objected to. Appeal dismissed - decided against Revenue.

Summary

Issues:
Dispute over demand of duty and penalty regarding availed credit without eligibility by a company for services related to handling of goods for export.

Analysis:
The appeal by Revenue against an order setting aside a demand of duty and penalty related to availed credit without eligibility focuses on the definition of 'input service' in CENVAT Credit Rules, 2004. The original authority disallowed the credit for taxes paid on services used for delivery of goods at the loading port, arguing they were not related to manufacturing. The impugned order relied on previous decisions regarding export-related services to justify setting aside the demand.

The contention revolves around whether the services in question qualify as 'input services' under the CENVAT Credit Rules, 2004. The Revenue argues that post-removal activities do not meet this criterion, while the respondent asserts that the loading of domestic taxes on exported goods would harm competitiveness. The existence of a refund mechanism for specific export-related services does not automatically exclude disputed services from being considered 'input services.'

The interpretation of 'place of removal' in the Central Excise Act, 1944 is crucial. The appellant contends that services used beyond the factory do not qualify as 'input services,' citing the statute's purpose of levying duty on clearance of goods. However, the respondent argues that for export goods, the 'place of removal' extends beyond the factory, as they remain the owner until physical export, making the factory not the place of removal. Services used until the actual export would qualify as 'input services.'

Various decisions cited support the argument that taxes should not be exported, and services used in exports should be exempt from tax. The High Court's decision in a related case emphasized that services availed until goods reach the port for export should be admissible for credit. The judgment concludes that the demand for tax paid by the assessee for availing CENVAT credit is unsustainable, leading to the dismissal of Revenue's appeal.