1. In all these seven appeals filed by the revenue, the issue is same and therefore all of them are taken together 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 Kuntal Granites Ltd. v. CCE 2007 (215) ELT 515 (Trib. - Bang.) wherein the place of removal in case of exports was held to be the load port. He has also relied upon the circular issued by the CBEC No. 97/8/2007-ST, dated 23-8-2007.

2. Heard the ld. Dr. M.K. Rajak on behalf of the revenue and Shri P.V. Sheth, Advocate in respect of the respondents Sl. Nos. 4 to 6. Dr. Rajak cited the decision of this Tribunal in Excel Crop Care Ltd. [2007] 9 STT 249 (Ahd. - CESTAT) rendered on 30-4-2007 holding that the credit of duty paid on CHA services is not admissible as Cenvat credit. He also submitted that the activities at the load port have nothing to do with the manufacture of goods and their clearance since the clearance has already taken place in case of export goods at the factory gate itself. On the other hand the ld. Advocate relies upon the decision of this Tribunal in CCE v. Rolex Rings (P.) Ltd. 2008 (230) ELT 569/ 16 STT 193 (Ahd. - CESTAT). He also cited the circular of the Board holding that the place of removal depends upon the facts as to whether the property or the ownership in the goods has passed to the buyer or not and in the case of FOB/CIF sale, the property passes only after the goods are loaded for the purpose of transportation or when the goods reached the destination as the case may be. At this stage, the ld. SDR submits that in view of the two conflicting decisions cited, the matter may be referred to the Larger Bench.

3. I have considered the submission from both the sides. There is no dispute that 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 Rules, 2004 and are not defined therein but are defined in the Central Excise Act, 1944 or the Finance Act, 1994, they shall have the same meaning for the CENVAT Credit Rules as assigned to them in those Acts. The phrase ‘place of removal’ is defined under section 4 of the Central Excise Act, 1944. It states that,-

‘"place of removal" means-

(i)a factory or any other place or premises of production or manufacture of the excisable goods;

(ii)a warehouse or any other place or premises wherein the excisable goods have been permitted to be stored without payment of duty;

(iii)a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory;

from where such goods are removed.’

It is, therefore, clear that for a manufacturer/consignor, the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the place of removal as per the definition. In case of a factory gate sale, sale from a non-duty