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TMI Blog2011 (10) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... e same as input service. The 14 appeals which have been filed by the Department are against orders passed by the authorities below allowing such credit. The other appeal filed by the appellant-assessee is against orders of the authorities below denying such credit. 2. In the course of hearing, a number of precedent decisions on this issue were cited. The same are listed below:- (1) Excel Crop Care Ltd. Vs. CCE, Ahmedabad - 2007 (7) STR 451 (Tri. - Ahmd.) - Order dated 30.4.2007 In this case, it has been held that credit is not admissible as CHA services availed in respect of export does not have nexus with the manufacture and clearance from the factory. It is also held that the business activity which are sought to be included in the ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 13.3.2008 In this case, it is noted that the definition of cargo handling service clearly puts a bar with regard to the imposition of tax on service used for export which also includes handling of the export cargo. (6) Adani Pharmachem P. Ltd. Vs. CCE, Rajkot - 2009 (238) ELT 179 (Tri. - Ahmd.) - Order dated 14.8.2008 In this case, it has been held that place of removal for export being Port, service tax paid on C&F service is admissible as credit. (7) CCE, Chennai Vs. Fourrts (I) Laboratories Pvt. Ltd. - 2010 (19) STR 86 (Tri. - Chennai.) - Order dated 8.10.2009 In this case, it is held that all services availed by an exporter under the Port area is required to be considered as input service as they are clearly related to bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not allow credit of service tax paid on CHA services holding that the services availed in the port area are not input services for the manufacture of goods. The departmental representatives appearing in different cases have placed reliance on these decisions which are mentioned above at Sl. No. (1) & (2) in paragraph 2 above, whereas reliance is placed by learned counsels appearing for the assessee-appellants/ respondents on other decisions listed above which allow credit of service tax paid on CHA and other services for various reasons. Some of the orders hold that these services are related to business activities of the assessees. Some of the other orders are passed on concession and/or non-challenge to such credit being allowed earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bangalore 2010 (18) STR 281 (Tri. - Bang.) that the legal provision under Section 37(2) (xviaa) enabled making rules for provision of credit of service tax paid or payable on taxable services used in or in relation to the manufacture of excisable goods, whereas the definition of input service under the CENVAT Credit Rules, 2004 was different and that there is lack of harmonization between the expressions used in the Act and the Rules. The two decisions at Sl. No. (1) and (2) in paragraph 2 above appear to be quite legal in terms of what Section 37(2) of the Act allows the rule makers to provide for. CHA services have been held under the said two decisions not to be relatable to manufacture of the goods. Some of the other decisions are appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in the case of Konkan Marine Agencies (cited supra) definition of cargo handling service itself puts a bar with regard to imposition of service tax in respect of service relating export cargo. Though it was pleaded on behalf of the Department in that case that there is no such exemption under the category of "Port Services", the Hon'ble High Court approved the decision of the Tribunal not to levy service tax in a case where export cargo was involved. It would perhaps be a better idea to provide similar exclusion as in the case of cargo handling service to exclude all services from the ambit of taxation when the same relate to export of goods. I find that the Government under Notification No.17/2009-ST dated 7.7.2009 has since grant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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