Ispat Industries Ltd vs Commissioner Of Central Excise, Nagpur

[Arising out of Order-in- Original No. 72/2010/C dtd. 30/8/2010 passed by the Commissioner of Central Excise & Customs, Nagpur]

For approval and signature:

Honble Mr. P.K. Jain, Member(Technical) Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

Ispat Industries Ltd. : Appellants

VS

Commissioner of Central Excise, Nagpur. : Respondent

Appearance

Ms. Isha Shah, Advocate for the Appellant Shri. Rakesh Goyal, Addl. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 23/4/2015 Date of decision 23/4/2015

ORDER NO.

Per : P.K. Jain

Brief facts of the case are that appellant are exporting part of their finished goods. During the process of export, certain services were utilized such as Cargo Handling Service, Damage Survey of finished goods, L.C. discounting commission/charges paid to bank etc. They availed credit of Service tax paid on such services. Appellants contentions are that the said services are covered within the definition of input services as provided under Rule 2 (2) of Cenvat Credit Rules, 2004. Revenue on the other hand is of the view that since services availed after clearance from the factory or from the place of removal, appellants are not entitled for the said credit.

2. Ld. Counsel for the appellant submits that Board vide Circular No. 999/6/2015-CX dated 28/2/2015 have clarified the issue. In para 6 of the said circular state that in case of clearance of goods for export by manufacturer exporter, transfer of property can be said to have taken place at the port where the shipping bills is filed by the manufacturer exporter and place of removal would be this Port/ICD/CFS and in view of the said clarification the demand relating to denial of the credit does not survive. Ld. Counsel for the appellant also submitted the judgment of Gujarat High Court in the case of Central Excise Vs. Inductotherm India Pvt. Ltd. [2014(36) S.T.R. 994(Guj)] and also of this Tribunal in the case of JSW Steel Ltd. Vs. Commissioner of Central Excise, Thane-I[2014(36) S.T.R. 801(Tri-Mumbai)] and JSW Steel Ltd. Vs. Commissioner of Central Excise, Thane-[2012(281) E.L.T. 582(Tri. Mumbai].

3. Learned . Addl. Commissioner(A.R.) reiterates the findings in the impugned order and refer to this Tribunals judgment in the case of Excel Crop Care Limited Vs. Commissioner of C. Ex. Ahemedabad[2007(7) S.T.R. 451(Tri. Ahmd.) wherein the Tribunal has taken a view that Custom House Agent service for export having no nexus with manufacture and clearance from factoryinput service definition not includes services rendering in port. He further submits that the same decision was followed by this Tribunal in case of Nirma Ltd. Vs. Commissioner of Central Excise, Bhavnagar, [2009(13) S.T.R. 64(Tri- Ahmd.)]

4. We have considered the submissions made by both the sides.

5. The Board vide Circular No. 999/6/2015-CX dated 28/2/2015 have issued clarification regarding place of removal which is as under:

6. In the case of clearance of goods for export by manufacturer exporter, shipping bill is filed by the manufacturer exporter and goods are handed over to the shipping line. After Let Export Order is issued, it is the responsibility of the shipping line to ship the goods to the foreign buyer with the exporter having no control over the goods. In such a situation, transfer of property can be said to have taken place at the port where the shipping bill is filed by the manufacturer exporter and place of removal would be this Port/ICD/CFS. Needless to say, eligibility to CENVAT Credit shall be determined accordingly.

There is no dispute that appellants are manufacturer-exporter and goods have been exported by them and that is why invoices for the various services are in their name. On the basis of such invoices they have availed Cenvat Credit. In view of the position and clarification issued by the Board in para 6 above, the appeal is allowed with consequential relief, if any, in accordance with law.

(Operative part pronounced in court)

Ramesh Nair Member (Judicial) P.K. Jain Member (Technical)

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