TMI Blog2014 (4) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... ut relating to sales activities (i.e. after manufacturing activities). However, while passing the OIO though the adjudicating authority has held that Business Auxilliary Service (BAS) on account of sales commission can be considered as Input Service within the definition of rule 2(I)(ii) of Cenvat Credit Rules, 2004 and the service tax paid on the said service is admissible as credit to the manufacturer, subject to certain conditions, the adjudicating authority has denied the Cenvat credit on altogether other grounds (mentioned in para 12.4 to 12.6 of the OIO) for which admittedly no show cause notice has been issued and no opportunity has been given to the petitioner. Under the circumstances, the OIO dated 31.03.2012 can be said to be in b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and recovered from them under rule 14 of the Cenvat Credit Rules, 2004 read with proviso to Section 11A(1) of the Central Excise Act, 1944. (ii) A penalty should not be imposed upon them under Rule 15 of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. (iii) Interest at the appropriate rate should not be demanded and recovered from them under Rule 14 of the Cenvat Credit Rules 2004 read with Section 11AB of the Central Excise Act, 1944; 4. That the Adjudicating Authority passed the OIO dated 31.03.2012 and passed the following order: 12.11. The assessee have wrongly availed Cenvat credit Service Tax to the tune Rs.4,12,050/- (BES Rs.4,00,049/- + Education Cess 8001/-+ Higher Educ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty days from the date of communication of this order, the amount of penalty stands reduced to twenty five per cent of the penalty of Rs.4,12,050/- provided the said reduced penalty is also paid within the period of thirty days from the date of communication of this order in terms of proviso to Section 11AC of the Central Excise Act, 1944. 5. Feeling aggrieved and dissatisfied with the OIO dated 31.03.2012, the petitioner has preferred appeal before the Commissioner (Appeals). However, there was a delay of about 222 days. Therefore, the petitioner submitted an application to condone the delay, however, by order dated 08.05.2013, the Commissioner (Appeals) has dismissed the said appeal being time barred and not maintainable u/s 35 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On merits, it is submitted by Shri Vora, learned advocate appearing on behalf of the petitioner that as such the OIO passed by the Adjudicating Authority is beyond the show cause notice issued and as such the OIO is in breach of principle of natural justice as no opportunity had been given to the petitioner with respect to the grounds on which the OIO has been passed. It is submitted that as such the show cause notice for denying the CENVAT credit was issued only on one ground that the assessee has availed the credit of service tax on commission for sale of finished goods, however, the same is not relating to manufacturing activities but relating to sales activities. It is further submitted that though the first Adjudicating Authority held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple of natural justice. However, he has submitted that if this Court is inclined to entertain the present Special Civil Application and to consider the OIO on merits, in that case, the matter may be remitted back to the first Adjudicating Authority to consider the issue afresh in accordance with law and on merits and the OIO be treated as a show cause notice, more particularly, the grounds stated in para 12.4 to 12.6 in the said OIO. 9. Heard Shri Vora, learned advocate appearing on behalf of the petitioner and Shri Gaurang Bhatt, learned advocate appearing on behalf of Shri RJ Oza, learned advocate appearing on behalf of the respondent. 10. At the outset, it is required to be noted that the appeal preferred by the petitioner has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on various other grounds for which no show cause notice was issued and no opportunity has been given to the petitioner. It appears that the show cause notice for denying the CENVAT credit was issued only on the ground that the petitioner has availed the credit of service tax on commission for sale of finished goods, which cannot be said to be relating to manufacturing activities but relating to sales activities (i.e. after manufacturing activities). However, while passing the OIO though the adjudicating authority has held that Business Auxilliary Service (BAS) on account of sales commission can be considered as Input Service within the definition of rule 2(I)(ii) of Cenvat Credit Rules, 2004 and the service tax paid on the said service is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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