SABOO COATINGS LTD Vs. COMMISSIONER OF C. EX

JUDGEMENT

(1.) AFTER hearing learned DR Shri R.K. Mishra, for the Revenue as nobody appeared for the appellants, I find that the credit of service tax of Rs. 13,832/ - paid in respect of digital photographs required for preparation of brochure/catalogue of the appellant company for sale promotion stand denied on the ground that same cannot be held as covered under the input services. Demand stand raised by invoking the longer period of limitation. Though on merits, Commissioner (Appeals) has rejected the appeal in terms of provisions of Rule 5(1) of Central Excise Rules, 2001 by holding that the appellants have produced brochure but for the first time before him which cannot be admitted, he has rejected the appellants plea of limitation by observing that though the appellants have availed the credit by reflecting the same in the returns, but they have nowhere shown that the said credit was taken in respect of digital photographs. As such, he attributed suppression to the appellants.

(2.) I neither agree with the Commissioner (Appeals) on merits of case nor on the point of limitation. As the entire case of the Revenue was that photographs used for brochure meant for sale promotion cannot held to be eligible input service, the presentation of the brochure before Commissioner (Appeals) cannot held to be a additional evidence so as to hit by the provision of Rule 5 of Central Excise (Appeals) Rules, 2001. As regards limitation, I find that there is no dispute by the lower authorities that the credit was availed and duly reflected in the returns. If there is no column in the returns to show the nature of the input services, the assessee cannot be blamed for not providing the details of the input services. It is well settled that non -disclosure of the fact which is not required to be disclosed in the law, cannot attribute any suppression to the assessee. As such, the reasoning of the Commissioner (Appeals) that appellants have not disclosed the digital photograph service as a service on which credit was availed thus leading to suppression, cannot be upheld. Accordingly, I set aside the demand on the point of limitation and allow the appeal with consequential relief to the appellant.