9911796707
TMI Blog2013 (3) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 2. In appeals Nos.E/1621 and 1622/2010 filed by the department, two issues arise for consideration viz., (i) whether the respondent was entitled to take CENVAT credit on CHA service which was used in connection with export of certain goods during 2008-09. (ii) Whether the respondent was entitled to take CENVAT credit on 'Business Auxiliary Services' received from foreign and domestic commission agents during 2008-09. The lone issue involved in the first appeal is analogous to the first issue stated above. 3. It is submitted by the learned Superintendent (AR) that the interpretation given to 'place of removal' by the learned Commissioner (Appeals) is not correct. The definition of 'place of removal' given under section 4(3) of the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred issue. 5. As regards the CENVAT credit taken on 'Business Auxiliary Service', it is submitted by the learned counsel that the services of commission agents were availed for collecting purchase orders for the manufacture and supply of goods and therefore such services would qualify to be 'input services' for the respondent. Insofar as 'Business Auxiliary Service' received from foreign commission agent is concerned, the service tax was paid by the respondent in the reverse charge mechanism and they were entitled to take credit thereof by virtue of Rule 3(1)(ixa) of the CENVAT Credit Rules, 2004. 6. I have also heard the learned Additional Commissioner (AR) on the above issue related to 'Business Auxiliary Service'. 7. I have carefull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... By O-l-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 goods dispatched to the lorry which met with an accident resulting in spillage of 51 pieces of granite slabs meant for export leading it its destruction. As a result of this rejection, the revenue has confirmed the demand of duty by Order-in-Appeal No. 5/06, dated 10-1-06 on the ground that assessee is required to discharge duty on the quantity of polished granite slabs which were destroyed in the accident as their prayer for remission of duty has been rejected by the Commissioner. The appellants contention is that in terms of Rule 21 of C.E. Rules they are entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overall customs control. This has been so held by the Tribunal in the case of Sangita Printers & Exporters v. CCE, [1994 (73) E.L.T. 182 (T)]. He also submits that the Apex Court in the case of M.J. Exports Ltd. v. CEGAT [1992 (60) E.L.T. 161 (S.C.)] has explained the expression, for "home consumption" vis-a-vis expression "warehousing". He also refers to the ruling rendered by this Bench in the case of Koeleman India Pvt. Ltd. v. CC, Bangalore [2005 (192) E.L.T. 866 (T-Bang.)] which has clearly held that when the goods are damaged during transportation from factory to the port of export, and due to reasons beyond the control of appellants then, it has to be held that there is no diversion for home consumption and demands were set aside. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case, the goods were exported and when export documents are presented to the Customs office, then that is the place of removal as per section 5 of C.E. Act. The same finding has been rendered by this bench in the case to Koeleman India Pvt. Ltd. v. CC, Bangalore [2005 (192) E.L.T. 866 (T-Bang.)]. There is no reason to take a different view from the same. The finding recorded by SMB in Ginni Filaments Ltd., is sub silentio without due consideration to the provisions of law. Hence Both the orders are set aside by allowing the appeal with consequential relief if any." The learned Superintendent (AR) made an attempt to distinguish the above case by submitting that the above decision was rendered in respect of remission of duty an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Granites case will be a valid precedent for the present cases. (ii) Whether the respondent was entitled to take CENVAT credit on 'Business Auxiliary Services' received from foreign and domestic commission agents during the relevant period. Insofar as the CENVAT credit claimed by one of the respondents on the services of domestic and foreign commission agents is concerned, there is no valid ground for the department's appeals. The appellant's plea that there was no nexus between the 'Business Auxiliary Services' and manufacture of the goods does not advance their case inasmuch as a nexus between 'Business Auxiliary Services' and clearance of the goods from the 'place of removal' has been established by the respondent. This nexus is e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
