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2024 (3) TMI 757 - AT - Service TaxExemption to SEZ Units from payment of Service Tax under N/N. 17/2011-S.T. dated 01.03.2011 - Reversal of CENVAT Credit utilized by the Appellant for discharging service tax liability which was allegedly not permissible under the Exemption Notification - Scope of SCN - HELD THAT:- The Exemption Notification which is applicable in the present case provides for refund of Service Tax paid by a SEZ Unit or a SEZ Developer, The Notification also does not provide for any conditions or restrictions on the discharge of the output liability of an SEZ Unit making sales or providing services in the DTA by utilising the Cenvat credit of a Non-SEZ Unit of the same assessee when both units are covered under the same centralized registration. It is well settled law that there is no bar on units registered under a centralized registration utilizing accumulated Cenvat Credit in discharge of liability, even if the said units were not entitled to avail Cenvat Credit on inputs/input services - Reliance can be placed in BE. BILLIMORIA & CO. LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [2013 (4) TMI 272 - CESTAT MUMBAI] where it was held that As decided in Bharat Heavy Electricals Ltd. Vs. CCE [2012 (4) TMI 197 - CESTAT, MUMBAI] wherein held that the appellant are entitled to utilize centralized Cenvat credit for payment of service tax for the service availed under the category of ‘Commercial or Industrial Service' and ‘Construction of Complex Services'. The Ld. Commissioner (Appeals) ought to have considered that there is no statutory basis for holding that there was a requirement of having the same invoicing series for units having a centralized registration. It is submitted that the sole basis for confirmation of demands in the Order-in-Original was that different invoicing series were being used for the two Units of the Appellant under centralized registration. Holding that the appellant does not have a centralized registration as they do not maintain centralized billing or accounting system as appearing from different invoicing series of the SEZ and Non-SEZ unit of the appellant. Even the learned Commissioner (Appeals) further digressed from the SCN and held the SEZ unit cannot operate under a centralized billing system under Rule 19(7) of the SEZ Rules. Both the Adjudicating Authority and the learned Commissioner (Appeals) have travelled beyond the scope of SCN which is not permitted - support found the from the judgment of the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, NAGPUR VERSUS M/S BALLARPUR INDUSTRIES LTD [2007 (8) TMI 10 - SUPREME COURT] that a show cause notice being the foundation of the matter, it was not permissible for the Commissioner to travel beyond it. The impugned order cannot be sustained and are accordingly set aside - Appeal allowed.
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