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2023 (10) TMI 818 - AT - Service TaxBurden to prove - eligibility for CENVAT Credit - possibility of having provided exempted excise duty activities from the premises in issue cannot be ruled out - appellant failed to discharge burden to prove under Rule 9(6) of CENVAT Credit Rules, 2004 - Extended period of limitation - scope of SCN crossed - HELD THAT:- SCN is the foundation on which the department has to build up its case and the allegations in the show cause notice have to be specific as oppose to vague or lacking details. The CENVAT credit has been denied by the learned Commissioner merely on the basis of assumption and presumption which is arbitrary and not as per law. While deciding the issue raised in the show cause notice about ‘nexus’ and ‘non-registration of premises at Delhi’, in favour of the appellant the said 1st appellate authority denied the CENVAT credit to the appellant by taking recourse to the provision of Rule 9(6) ibid merely on the basis of assumption and presumption by recording the finding that ‘the possibility of having provided exempted Excise duty activities only from the said cannot be ruled out and therefore in such situation, the impugned credit would be ineligible to the appellant’ which, is not sufficient to deny the credit to the appellant. There is no mention about rule 9(6) ibid anywhere in the show cause notice. Rule 9(5) ibid mandates maintaining of proper records for the receipt, disposal, consumption and inventory of the input and capital goods whereas Rule 9(6) ibid talks about maintaining of proper records for the receipt and consumption of input services [emphasis supplied]. Rule 9(5) is about the input/capital goods whereas rule 9(6) is regarding input service and both are independent of each other. Time and again it has been laid down through various decisions that show cause notice is the foundation and judicial principles do not permit the adjudicating authority or the 1st appellate authority, as the case may be, to travel beyond the show cause notice. Since the impugned order has travelled beyond the show cause notice and has been passed on a new ground, the same is not sustainable and is liable to be set aside. In such circumstances it would not be necessary to examine the other issues viz. suppression or invocation of extended period. The appeal filed by the appellant is allowed.
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