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2015 (1) TMI 1142 - AT - Service TaxCENVAT Credit - Suppression of facts - whether Cenvat credit is admissible for the port services and CHA services utilised by the appellant in respect of their exported goods - Held that:- adjudicating authority has observed that the Board’s Circular, dated 23-8-2007 is a clarification only with respect to the eligibility of Service Tax paid on GTA services and is not applicable in respect of the Custom House Agent and port service. The adjudicating authority also referred to a letter No. NSAL/2009-10/87, dated 30-9-2009 wherein the appellant has stated that the place of removal is the factory gate. The adjudicating authority further held that in their monthly returns they have simply mentioned the gross amount of Service Tax credit taken and never disclosed the input services on which it is taken and therefore they are guilty of suppression and wilful mis-statement. Adjudicating authority has not discussed the contentions of the appellant made in their submissions and have not recorded any definitive finding as to what is the place of delivery of the exported goods in the present case and yet has concluded that the place of removal for the exported goods is factory gate and not the port of shipment. The appellant’s letter, dated 30-9-2009 stating that the place of removal is factory gate is with reference to the department’s queries which did not refer to exported goods. It can be nobody’s case that an assessee necessarily has to have only one place of removal for all their clearances. It does come out from the adjudication order that the adjudicating authority may not be averse of allowing the credit of service tax paid on port services and GTA services if the place of removal is determined to be the port of loading. The adjudicating authority has also not brought out as to how the appellant is guilty of wilful mis-statement or the suppression of facts. The adjudicating authority has merely stated that in their ER-1 returns they did not declare as to on which input services the credit was taken. He has not discussed whether the appellant was required under any provision of law to declare in ER-1 returns or otherwise the names/details of services in respect of which the appellant had taken the Cenvat credit. It is settled law that mere not telling is not suppression when there is no legal requirement to tell. - Matter remanded back - Decided in favour of assessee.
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