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2017 (9) TMI 74 - CESTAT NEW DELHICENVAT credit - input service - construction services - case of Revenue is that major part of appellant's claim of Cenvat credit pertains to supply of readymix concrete, which is an activity in the domain of manufacturing and the activity being under the category of manufacturing the same cannot be an input service for claiming Cenvat credit - Held that: - as per the relevant law the appellant is entitled to Cenvat credit on the ‘construction services’, during the relevant period prior to 31.3.2011 (2008-2009 to 2010-2011), as the amendment excluding the ‘construction services’ from the definition of input service under Rule 2(l) of CCR, 2004 came into with effect from 1.7.2012 only vide N/N. 28/2012-CE(NT) dated 20.6.2012. Scope of SCN - Cenvat credit in case of supply of readymix concrete - Held that: - This reasoning given by the impugned order has not been part of the Show Cause Notice issued to the appellant. If it is so, the denial of Cenvat credit on this reasoning is set aside - The Hon’ble Supreme Court’s decision in the case of CCE Vs. Ballarpur Industries Ltd. [2007 (8) TMI 10 - SUPREME COURT OF INDIA] has held that the Show Cause Notice is the foundation in the matter of levy and recovery of duty, penalty and interest; if there is no invocation of any rule in the Show Cause Notice it would not be open to the adjudicating authority to invoke the same - the appellant is entitled to Cenvat credit in case of supply of services relating to readymix concrete, which would be covered by ‘construction service’. The appellant is entitled to Cenvat credit for the services which are covered by ‘construction service’ except in the case of the invoice(s) pertaining to construction activity near Railway station, where credit of ₹ 4,496/- is involved and for which the appellant during hearing has withdrawn their claim of Cenvat credit. Appeal allowed - decided partly in favor of appellant.
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