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TMI Blog2008 (7) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... her for disposal. The short issue involved in all these appeals is eligibility of service tax paid on CHA services rendered in the port to the exporter when the export has been made on FOB basis or CIF basis. The Commissioner (Appeals) has held that service tax paid on CHA services is admissible as CENVAT credit in these cases in view of the fact that the place of removal has to be considered as the port where the goods are put on board the ship or the aircraft as the case may be. He has relied upon the judgment of the Tribunal in the case of M/s Kuntal Granites Ltd., 2007 (81) RLT 707 (CESTAT-Ban.) = 2007 (215) ELT 515 (Tri.- Bang.) wherein the place of removal in case of exports was held to be the load port. He has also relied upon the Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the goods have been sold on FOB/CIF basis. There is also no dispute that the service tax had been paid for the CHA services rendered. There are only two questions to be decided. The first is what would be the place of removal in such cases. I find that the clarification issued by the CBEC in the Circular cited above is very relevant and therefore para 8.2 of the circular is reproduced below:- "8.2 In this connection, the phrase 'place of removal' needs 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 Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service 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." From the circular, it is quite clear that in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that case was factory gate. There no doubt that in each and every case, it is necessary to consider as to exactly which is the place of removal before allowing the benefit of CENVAT credit Therefore any decision rendered in an individual case cannot be applied to another case unless the facts happen to be same. Therefore the decision of the Tribunal in M/s Excel Crop Care Ltd.'s case cannot be considered and applied to the cases under consideration now. On the other hand I find that the decision of the Tribunal cited by the ld. Advocate for the respondents is applicable on facts and this decision has also considered the decision in M/s. Excel Crop Care Ltd. and has distinguished the same. I am in full agreement with the decision cited by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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