TMI Blog2015 (1) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay/52463/2014-Ex. filed along with their appeal against Order-in-Original No. 05-09/COMMR/CEX/IND/2014, dated 17-1-2014. The appellant has stated that while their stay application is pending, the department is pressing hard for recovery and the Supdt. concerned has issued them letters demanding payment relying on the Board s Circular No. 967/01/2013-CX, dated 1-1-2013. The applicant had contended that the said circular has been held to be invalid by various judicial pronouncements and cited several judgements of the various High Courts holding that coercive recovery action cannot be initiated during the pendency of the stay application. 2. The appellant inter alia prayed that the Revenue should be directed not to take any coercive action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporter up to the port, the port is the place of removal. He also took us through a series of judgments on the issue wherein it has been held that in case of exported goods the place of removal is the port of shipment and that the Service Tax paid on the services used up to the port of loading would be eligible for Cenvat credit. 5. The ld. Advocate also stated that in the Order-in-Original the adjudicating authority has not discussed the arguments and judgments put forth by them in support of their claim that the place of removal in their case for their exported goods is the port. It was also argued that the ER-1 returns have been regularly filed showing the impugned credit and these are not wilful mis-statement or suppression of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and wilful mis-statement. 8. We observe that the issue as to what is the place of removal has been touched upon by the adjudicating authority in Para 15.3 which contains the following observation :- The noticee has also referred a large number of cases in their defence reply and claimed that in all these cases it is held that the place of removal in the case of export of goods is the port from where the goods are exported. I observe that the noticee has exported their final product and availed the credit of service tax paid on Customs House Agent and Port Services in export of goods. The final product during the course of journey before reaching the foreign buyer, goes through the local transporter and get unloaded at the port a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 10. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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