TMI Blog2018 (7) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants, did not give any finding against the availment of credit by the appellants. Show Cause Notice also did not seek to reject the claim on this count. Therefore, a strong case is made out by the appellants. In the instant case both, original and appeal authorities, have gone beyond the scope of the Show Cause Notice. Appeal allowed - decided in favor of appellant. - ST/278/2008-DB - Final Order No. 20868/2018 - Dated:- 3-7-2018 - HON'BLE MR. S.S GARG, JUDICIAL MEMBER And HON'BLE MR. P. ANJANI KUMAR, TECHNICAL MEMBER Mr. Cheriyan Punnoose, For the Appellant Mr. Pakshi Rajan, AR For the Respondent ORDER Per : P. Anjani Kumar The appellants, M/s/ Hewlett Packard (India) Sales Pvt. Ltd. were engag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t alleged that on scrutiny of the invoices, no such bifurcation regarding the value of sale of components and labour has been made in the invoices issued by the appellants. Therefore, the department sought to reject the refund claim in terms of the Board s Circular supra. The Assistant Commissioner of Central Excises rejected the refund claimed by the appellants taking the plea that the appellants did not maintain separate records as per Rule 6(2) of CENVAT Credit Rules, 2004 for the relevant period and that there was no separate statement in respect of taxable and exempted services and the appellants were unable to specifically identify the invoices, bills against which credit was taken. In that instant case, as per the provisions of Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on the entire value of the contract which has attended the finality; Circular quoted by the Department is not relevant. 5.1. The appellants have clarified and proposed to the Department that they had collected Service Tax only of 40% of the value from the customers; a certificate from the Chartered Accountant was also submitted; The Assistant Commissioner and the Commissioner (A) further have sought to deny the refund on the ground that the appellants were not entitled to take credit of the duty paid on inputs and that since they are providing both taxable and exempted service, they are entitled to utilize only 20% of the Service Tax payable and therefore, there was no excess payment; the appellants contented that these facts were n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be revised; appellants submitted that the proviso to Rule 3 4 only stipulates that the credit availed specifically cannot be utilized to pay excise duty or Service Tax for an earlier period; credit available up to the month may be used for payment of duty relating to that month; the appellants submitted that in the month of July and August 2004, the entire payment was in cash, the appellants have not at all taken the credit in these months; they have not used the same for payment of Service Tax and the utilization of credit for payment of excise duty or Service Tax came into force with effect from 10th September 2004 only; therefore, reliance placed by Commissioner (A) on the proviso 2 of Rule 3 and 4 of CENVAT Credit Rules is irrelevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.11.2006 and 21.12.2006 clarified that they were taking credit of only the inputs/input service directly relatable to maintenance or repair service; this has been verified by the departmental officers as well as the Accountant General s Audit Party; appellants could have availed CENVAT credit on various other taxable services like telephone, security, bank charges, car rental etc; they have availed credit only on those transactions which are directly attributable to provision of maintenance or repair services. 7. They have contended that the lower authorities cannot travel beyond the scope of the allegations in the Show Cause Notice. They relied upon the following case: (i) CCE; Surat Vs. Sun Pharmaceuticals Ltd. 2015 (326) ELT (SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n whether the Commissioner (A) can take a completely different ground which was not an issue in the Order-in-Original. We find that whereas the Show Cause Notice sought to reject the refund claim on the allegations of non-maintenance of records in terms of CBEC Circular No. 59/8/2003 dated 20.06.2003, the Assistant Commissioner while passing the Order-in-Original has rejected the refund claim on alleged non-adherence to Rule 6 (2) of CENVAT Credit Rules, 2004 for the relevant period and the Commissioner (A) has rejected the claim on the premises of non-maintenance of accounts separately for taxable and non-taxable services. The findings of commissioner as per whose order the appellants have paid the duty by way of cash and Cenvat credit wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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