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TMI Blog2013 (3) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... sions, I find that the issue is no longer res integra. In the case of C.C.E., Bangalore vs. Stanzen Toyotetsu India (P) Ltd. [2011 (23) S.T.R. 444 (Kar.)], the Hon ble High Court held as under :- 13. Rent-a-Cab service is provided by the assessee to these workers to reach the factory premises in time which has a direct bearing on the manufacturing activity. In fact the employee is also entitled to conveyance allowance. It also would form part of a condition of service and the amounts spent on the conveyance of the employees is also a factory which will be taken into consideration by the employees in fixing the price of the final product. By no stretch of imagination can it be construed as a welfare measure. It is a basic necessity. To ensu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided therein had not reached finality. I find that, in the said cases, the appeals filed by the department have been dismissed by the Hon ble High Court vide 2011(23) STR 444 (Kar.) and [2011] 32 STT 251 (Kar.). 3. In the result, the order impugned in the first appeal requires to be set aside. It is ordered accordingly and the appeal is allowed. 4. In the second appeal, the challenge is against denial of CENVAT credit on CHA service used by the assessee for export of goods during the period from June 2007 to September 2008. The original authority allowed the credit to the assessee but the appellate authority set aside the lower authority s order. Hence the present appeal of the assessee. 5. After hearing both sides a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the definition of place of removal given under Section 4(3) of the Central Excise Act would be applicable to cases arising under the CENVAT Credit Rules, 2004 also as there is no separate definition of place of removal under these Rules. The expression place of removal was examined by a division bench of this Tribunal in the case of Kuntal Granites (supra). The full text of the Tribunal s order reads as follows: Both these appeals raises common question of law and facts pertaining to the same assessee and hence they are taken up together for disposal as per law. By O-I-O No. 1/05, dated 21-4-05, the Commissioner has rejected the application filed by the appellant seeking revision of Central Excise duty under Rule 21 with regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods after the goods have crossed the Customs frontiers of India. He points out that in respect of export goods, place of removal will be only when the documents are presented to the Customs Officers for export. The finding given by the authorities that the place of removal is factory is not correct in respect of export goods as the sale comes into effect only when the documents of title to the goods are presented at the Customs office in the form of presentation of shipping bills. He submits that when clearances are made under bond, are deemed to be under overall customs control. This has been so held by the Tribunal in the case of Sangita Printers & Exporters v. CCE, Allahabad [1994 (73) E.L.T. 182 (T)]. He also submits that the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 4(3)(12) of Central Excise Act read with Rule 21 of Central Excise Rules and Section 5 of the Central Excise Act. When the goods are removed from the factory for export purposes and the goods are destroyed due to unavoidable reasons, accident caused to the lorry, then in such a circumstances the goods are not deemed to have been removed from the factory gate in terms of Section 5 of the Central Sales Tax Act as sale has not been completed. Section 4(3)(c) of C.E. Act clearly explains that the place of removal is the premises from where excisable goods are to be sold after their clearance from the factory. In the present case, the goods were exported and when export documents are presented to the Customs office, then that is the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of removal . In view of this decision, it has to be held that the respondents were entitled to treat CHA service/GTA service as input services under Rule 2(l) of the CENVAT Credit Rules, 2004 as these services were used for clearance of excisable goods from the place of removal . It was submitted by the learned Superintendent (AR) that the decision in Kuntal Granites case was appealed against by the department. However, it was not claimed that the Tribunal s decision was stayed by the appellate court. The outcome of department s appeal in Kuntal Granites case is also not available. Hence the decision in Kuntal Granites case will be a valid precedent for the present cases. No claim of appeal against the above decision of this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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