TMI Blog2017 (9) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... ame 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 under Cenvat Credit Rules. The appellant pleads that when Show Cause Notice has been issued on entirely different ground, the Cenvat credit cannot be denied on different ground, which is not mentioned in the Show Cause Notice. 4. The Department is also contesting the part Cenvat credit amounting to ₹ 1,95,445/- saying that such activity of construction was done outside the factory premises of the appellant. However, the appellant states that all such activities were within their factory premises and they being the manufacturer of sponge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it on this reasoning is set aside. The Hon ble Supreme Court s decision in the case of CCE Vs. Ballarpur Industries Ltd. - 2007 (215) ELT 489 (SC) 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 Hon ble Supreme Court in the said case has observed as under : 21. Before concluding, we may mention that, in the present case, the second and the third show cause notices are alone remitted. The first show cause notice dated 21-51999 is set aside as time-barred. However, it is made clear that Rule 7 of the Valuation Rules, 1975 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no whisper of the essentiality test in the show-cause notice. As no case of essentiality test has been made out in the show-cause notice, the same cannot be argued for the first time before this Court. As such the judgment in Kemrock (supra) on essentiality test is of no avail. 6.3 Consequently, considering the observations of Hon ble Supreme Court in the decisions (supra), there cannot be any doubt that the appellant is entitled to Cenvat credit in case of supply of services relating to readymix concrete, which would be covered by construction service . 6.4 In case of remaining demand of Cenvat credit, from the facts and submissions of both the sides, it is clear that the appellant is entitled to Cenvat credit for the se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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