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2017 (12) TMI 760 - AT - Central ExciseRefund of unutilized CENVAT credit - CBEC Circular No.828/5/2006-CX dated 20.4.2006 - place of removal - Held that - in case of export of goods, the place of removal is the port of export and therefore, the appellant is entitled to the CENVAT credit on GTA up to the port - appeal allowed - decided in favor of appellant.
Issues:
Refund claim of unutilized CENVAT Credit, eligibility of refund amount, contravention of Notification No.5/2006 and Rule 5 of CENVAT Credit Rules, rejection of refund claim, place of removal in case of export of goods, CENVAT credit on GTA service, binding judicial precedent. Detailed Analysis: 1. Refund Claim of Unutilized CENVAT Credit: The appellants filed a refund claim of unutilized CENVAT Credit amounting to ?7,72,500/- for the period January 2010 to March 2010. The sanctioning authority initially refunded an amount of ?6,18,000/- under a simplified procedure for sanction of refund. However, upon verification of input documents, it was found that the appellants contravened the provisions of Notification No.5/2006 and Rule 5 of CENVAT Credit Rules by taking credit on outward freight, leading to a show-cause notice proposing to reject the entire refund claim. 2. Eligibility of Refund Amount: The Commissioner (A) held that only an amount of ?1,49,441/- is liable to be rejected for refund, while the rest of the amount is eligible for refund. The appellant challenged this decision, arguing that the impugned order is contrary to binding judicial precedent on the issue, which has been settled by various decisions of the Tribunal and the High Court. 3. Place of Removal in Case of Export of Goods: The main issue raised by the appellant was regarding the determination of the place of removal in case of export of goods. The appellant contended that the place of removal is the port of export, entitling them to claim CENVAT credit on Goods Transport Agency (GTA) service up to the port. The appellant relied on various decisions to support this argument, emphasizing that the price for the export of goods includes the cost of transport, making the service tax on freight charges eligible for credit. 4. CENVAT Credit on GTA Service: The appellant argued that the Commissioner (A) wrongly held that the place of removal is the factory gate in case of export of goods, leading to the disallowance of CENVAT credit on GTA service. The appellant referenced a Board Circular clarifying that if freight charges are integral to the price, then the service tax on them is eligible for credit. The appellant's position was supported by precedents from different Tribunals and Courts, highlighting the importance of considering the place of removal in determining CENVAT credit eligibility. 5. Binding Judicial Precedent: The appellant contended that the impugned order failed to consider binding judicial precedent on the issue, which has been settled by previous decisions of the Tribunal and the High Court. By citing specific cases where similar issues were addressed, the appellant sought to establish the legal basis for their claim regarding the place of removal and the eligibility of CENVAT credit on GTA service. In conclusion, the Appellate Tribunal allowed the appeal by setting aside the impugned order, emphasizing that in the case of export of goods, the place of removal is the port of export, entitling the appellant to claim CENVAT credit on GTA service up to the port. The decision was based on a thorough consideration of the submissions from both parties and the application of relevant legal precedents to resolve the issues raised in the appeal.
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