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2023 (2) TMI 778 - HC - Central ExciseOrder beyond the scope of show cause notice - Rejection of stay application filed by the assessee against the demand of duty - stay granted only with respect to demand of interest and penalty - refusal to grant waiver of pre-deposit of the amount during the pendency of the appeal - HELD THAT:- In view of the fact that the main appeal is still pending and the arguments advanced are purely legal, present appeal is being disposed of at the fresh stage with the consent of parties. Submission is, the adjudicating authority could not have travelled beyond the scope of the show cause notice. Vide show cause notices dated 19.10.2007 and 29.4.2008, the assessee was only required to show cause why its claim of CENVAT credit may not be disallowed against the goods (specified in the notice) as they did not fall within the definition of the term 'Capital Goods'. No allegation was levelled in the show cause notice to disallow such claim on merits that input goods had not been purchased or received or used. However, while passing the adjudication order dated 14.10.2009, the adjudicating authority has fallen in error in rejecting the claim on the basis of utilisation which was not an issue to be adjudicated. It cannot be disputed that the issue on which adjudication was sought to be made and the issue that has been adjudicated appear to be different. Insofar as the issue on merits had not been opened in the show cause notice, prima facie case is made out for grant of interim protection. The present appeal is disposed of with the observation that the Tribunal shall make best efforts to hear and decide the above appeal within a period of three months.
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