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2023 (6) TMI 1085 - AT - Service TaxLevy of Service Tax - Goods Transport Agency services - scope of SCN - denial of Cenvat credit on input services - penalty u/s 78 of FA, 1994. Scope of SCN - Ld. Commissioner while adjudicating the matter has clearly travelled beyond the allegations made in the SCN - only allegation that was made in the SCN that the appellant has not made payment of service tax on the expenditure incurred by them on lorry hire charges / freight charges, which were booked under the broad head operational expenses - Demand of Service Tax on GTA Services - HELD THAT:- Rule 2(1)(d)(v) of the Service Tax Rules was invoked to propose demand under RCM since the appellant is a private limited company. However, in the impugned order, the demand has been confirmed on a different basis altogether that the appellant has earned freight income from its client and since the appellant has not issued consignment notes which they were statutorily required to do so, the appellant cannot claim any relief by not paying service tax - the impugned order has travelled beyond the scope of SCN, which is the very foundation in the matter of levy and recovery of duty and the authorities are required to restrict to the allegations what has been set out in the notice. Non-compliance with the said principles vitiates the entire proceedings which is legally not permissible. In any case, it is found that even the Ld. Commissioner has accepted in the order that the lorry suppliers were not required to issue consignment notes. Once the same is duly accepted, it cannot be said the appellant has received any GTA services from the lorry suppliers. In that case, Rule 2(1)(d)(v) prescribing liability under RCM cannot be invoked. Hence, the demand under GTA services cannot be sustained and thus set aside. CENVAT Credit - denial on the ground that the service providers could not be traced during the visit by the Department officers - HELD THAT:- It is not known when such visits were made, what steps have been taken to ascertain whether tax amount has been ultimately deposited by the service providers. Both SCN and the impugned order are completely silent on the enquiry report has not been made available at any stage of the proceedings. Moreover, no allegation in the SCN has been made that there was any connivance between appellant and the service providers so as to facilitate availment of irregular or wrong credit - the allegation to deny credit is based on assumptions and conjectures which cannot be the reason to deprive the assessee from availing credit. Hence, the order for recovery of credit cannot be legally sustained. The impugned adjudication order is set aside - Appeal allowed.
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