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2019 (4) TMI 22 - AT - Service TaxCENVAT Credit - option to avail method for reversal - quantification of the amount to be reversed - non-filing of intimation/declaration before the jurisdictional Central Excise officer - Rule 6 of CCR - Scope of SCN - Held that:- There was no specific allegation made therein regarding adoption of wrong formula by the appellant-assessee. Since the learned Commissioner (Appeals) has held that non-filing of intimation/declaration is a procedural lapse, he should have allowed the appeal in favour of the appellant-assessee, instead of remanding the matter to the adjudicating authority for quantification of the amount to be reversed by the appellant-assessee - Also, for consideration of the prescribed formula, the learned Commissioner (Appeals) has not specifically issued any notice to the appellant-assessee for the defence submissions - Hence, consideration of altogether a new ground in the impugned order cannot be sustained for judicial scrutiny and accordingly, the appeal of the appellant-assessee should succeed on such ground. Non-filing of intimation/declaration before the jurisdictional Central Excise officer regarding availment of option is a procedural lapse inasmuch as the information required to be contained in the declaration was already available with the department, which were furnished in the periodical ST-3 returns filed by the appellant-assessee - Tribunal in the case of Mercedes Benz India Pvt. Ltd. vs. CCE [2015 (8) TMI 24 - CESTAT MUMBAI] has held that non-filing of intimation is only a procedural lapse, for which the benefit provided under Rule 6(3)(ii) read with Rule 6(3A) of the rules cannot be denied. Appeal allowed - decided in favor of appellant.
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