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TMI Blog2011 (2) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order, it is felt that it is not necessary to accede to the request for adjournment. 3. The relevant facts, in brief, are that the respondents are manufacturer of Gherkins falling under Chapter 20 of the Central Excise Tariff Act, 1985 which they export. Their exports are made on FOB basis. They availed CENVAT credit inter-alia on Goods Transport Agency (GTA) services utilized by them. The basic dispute relates to eligibility of credit on GTA services used for transporting the goods from their factory to the port of export. The credit was initially taken during the period from 1.2.2006 to 31.8.2007. As the respondents were not in a position to utilize the same as they are not having any DTA clearance, they sought for refund of the unuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal in the case of ABB Ltd. Vs Commissioner of Central Excise, Bangalore - 2009 (15) STR 23 (Tri-LB) has been appealed against before the Hon'ble High Court of Karnataka and the same stands stayed by the Hon'ble Karnataka High Court. He also submits that in the facts and circumstances of the case 'port of export' cannot be treated as 'place of removal' as wrongly held by the Commissioner (Appeals). The learned SDR produces copies of judgment relied upon by the Commissioner (Appeals) and submits that the same have been wrongly relied upon by the Commissioner (Appeals) especially when the issue is pending before the Hon'ble Karnataka High Court in the case of ABB Ltd. (supra) . 5.1 I have carefully considered the submissions of the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds determination taking into account the facts of an individual case and the applicable provisions. The phrase 'place of removal' has not been defined in CENVAT Credit Rules. In terms of sub-rule (t) of rule 2 of the said rules, if any words or expressions are used in the CENVAT Credit Rules, 2004 and are not defined therein but are defined in the Central Excise Act, 1944 or the Finance Act, 1994, they shall have the same meaning for the CENVAT Credit Rules as assigned to them in those Acts. The phrase 'place of removal' is defined under section 4 of the Central Excise Act, 1944. It states that,- "place of removal" means- (i) a factory or any other place or premises of production or manufacture of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the said place." 5.4 Applicability of the Board's Circular to the facts of the present case was also claimed before the original authority but it is seen that the same was not dealt with by the original authority. However, the Commissioner (Appeals) has accepted their submissions. In the grounds of appeal, no material which can challenge the factual basis on which the Commissioner (Appeals) has taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ller till the delivery of the goods in acceptable condition to the purchaser at his door step. Accordingly, even the second condition that the seller has to bear the risk of loss or damage to the goods during transit to the destination stand fulfilled. 13. The third condition that the freight charges were integral part of the excisable goods also stand fulfilled as the delivery of the goods is "FOR destination' price. This aspect has been specifically pointed out in para 2.2 of the reply dated 12-4-2006 given to the show cause notice. Therefore, we are of the view that the first question is liable to be answered in favour of the assessee and against the revenue. 14. Once the first question has been an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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