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TMI Blog2016 (5) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... Having decided that the place of removal is the Port, hold that the appellants are eligible for cenvat credit on GTA, CHA and wharfage charges. Since credit is held to be eligible for the appellants, levy of penalty is also set aside. - Decided in favour of assessee - Appeal No. E/40313/2015 - Final Order No.40709/2016 - Dated:- 3-5-2016 - SHRI P.K.CHOUDHARY, JUDICIAL MEMBER For the Appellant : Shri M. Karthikeyan, Advocate For the Respondent : Shri S. Mohan, AC (AR) ORDER M/s Softgel Healthcare Private Limited, hereinafter referred to as appellants are engaged in the manufacture of P P Medicaments and Dietary Supplements falling under Chapter Sub Headings 30049099 21069099 of the First Schedule to the Central Excise Tariff Act 1985 respectively. The besides are availing the facility of cenvat credit on inputs, capital goods and input services and utilizing the same for payment of duty of the said products manufactured and cleared. The appellant was issued a show cause notice No.12/2012-C.Ex. dated 10.04.2012 and SCN No.26/2012 dt. 16.06.2012 (Page Nos 29 to 36 of this appeal paper book) issued on them. In the said notice it was clearly pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble Supreme Court of India in the case of Maruthi Suzuki Ltd. Vs CCE Delhi (2009 (240) ELT 641 (SC) and the decision of the Honble Tribunal in the case of CCE Chennai Vs Sundaram Brake Linings - (2010 (19) STR 172). 5. Aggrieved with the above said Order in Appeal dated 10.11.2014 passed by the Commissioner (Appeals), Chennai , the appellant had filed their appeal with the Tribunal. 6. Heard both sides. The appellant contended, inter alia, that the order of the lower authority confirming the recovery of the credit availed on input services such as outward freight by stating that the said services will not fall within the definition of input services is not sustainable; that from the definition of the term service as contained in Rule 2(1) of the Cenvat Credit Rules 2004, prior to amendment vide Notification No. 03/2011 dated 01.03.2011, it may be observed that the scope of the said definition is very wide and covers a spectrum of services availed by a Manufacturer; that the services can be used in or in relation to manufacture and clearance of the final product either directly or indirectly; that the service tax credit on freight paid towards outward transportation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seller / manufacturer of the goods till the delivery of goods in acceptable condition to the purchaser at his doorstep, the seller / manufacturer bears the risk of loss or damage to the goods during transit to the destination; that freight charges were an integral part of the price of the goods, the cenvat credit of the service tax paid on the transportation up to such place of sale would be admissible; that in the instant case, all the conditions stipulated in the Master Circular No. 97/6/2007 dated 23.08.2007 issued by CBEC have been duly complied. 7. The Learned A.R reiterated the findings in the impugned Order-in-Appeal with particular reference to para 6 of the said judgement reading as under: Consequent to amendment to the definition of input service , with effect from 01.04.2008, cenvat credit on outward transportation of goods was allowable only when it involved transportation of goods upto the place of removal. Prior to 01.04.2008, the definition of input service allowed credit in respect of transportation from the place of removal. In this case, it is not in dispute that the outward transportation of goods was from the place of removal i.e from the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority. It is observed that in para 5 of the said order, the Deputy Commissioner has observed that the case laws cited by the assessee are not relevant to the case in hand, as this is a credit of service tax paid for transportation of goods for an export transaction. The value taken by any export benefit / calculations, the FOB value is the criteria. Accordingly, the place of removal for an export benefit / calculations, the FOB value is the criteria. Accordingly, the place of removal for an export transaction is deemed to be the factory gate of the manufacturer . This finding by the adjudicating authority is erroneous and contrary to the ruling of this Tribunal in the case of Hyundai Motors referred to supra. 10. The period of dispute in the instant case is from April 2008 to December 2011. The appellant has contended that the following conditions stand satisfied in the instant case. 1. The ownership of the goods and the property in the goods remain with us till the delivery of the goods; 2. We bear the risk of loss or damage to the goods in transit till the Customer s premises; 3. Freight / Insurance charges are integral part of the price of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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