TMI Blog2010 (8) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... vailed, it would be in the fitness of case to set aside the impugned order and remand the matter to the adjudicating authority to give an opportunity to the appellants in this regard and to pass an order afresh in accordance with the provisions of law after taking into consideration all such materials which may be produced by the parties in this regard - E/543/2010 - 645/2010-EX(PB) - Dated:- 20-8-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri Prabhat Kumar, Advocate, for the Appellant. Shri Nitin Anand, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. Heard the learned advocate for the appellants and the DR for the respondent. 2. The present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order, the appellants have approached the Tribunal. 4. While assailing the impugned order, the learned advocate for the appellants submitted that, bare reading of the impugned order discloses that the lower appellate authority had travelled beyond the allegations in the show cause notice inasmuch as that the invoices were sought to be treated as bills of exchange inspite of the fact that there was no limitation prescribed for availing the Cenvat Credit merely because the credit was utilized by the appellants in the year 2008-09 in relation to the credit availed during the period from 2005 onwards, the same is sought to be denied to the appellants. Drawing our attention to the decision of the Tribunal in the matter of Coromandel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the matter in hand, it was pointed out to the assessee in the show cause notice itself that the credit was sought to be availed without even disclosing necessary details in the statutory record and yet there was no sufficient documentary evidence produced about the availment of the credit which was sought to be utilized in the year 2008-09. 6. On hearing the learned advocate for the appellants and the DR for the respondent and on perusal of the order passed by the authorities below, it is apparent that there was a dispute about actual receipt of the input service and the availability of credit to avail the same and in that regard a specific mention was made in the show cause notice. It is equally true that the said allegation was denie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to establish their claim. Since the appellants have stated that they have sufficient documentary evidence to establish procurement of input service in respect of which the credit was sought to be availed, it would be in the fitness of case to set aside the impugned order and remand the matter to the adjudicating authority to give an opportunity to the appellants in this regard and to pass an order afresh in accordance with the provisions of law after taking into consideration all such materials which may be produced by the parties in this regard. 8. The learned advocate for the appellants is also justified in contending that the Commissioner (Appeals) should not have ignored the order passed by the Tribunal by merely observing the same t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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