TMI Blog2011 (8) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... eing the position, the legal points to be raised in defence becomes common for the services and therefore, the claim made by the appellant that there was a mistake has to be considered - Decided in favor of the assessee by way of remand - E/544 of 2011 - - - Dated:- 1-8-2011 - Mr. B.S.V. Murthy, J. For Appellant : Shri S.R. Dixit, Advocate For Respondent : Shri R.S. Srova, JDR Per : Mr. B.S.V. Murthy; Appellant is engaged in the manufacture of bulk drugs falling under Chapter 29 of schedule of Central Excise Tariff Act, 1985. An objection was taken that availment of cenvat credit of service tax paid to commission agents related to exports as well as domestic clearances was wrong amounting to Rs. 55,306/- and proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e earlier period also. Even though in the appeal filed before learned Commissioner (Appeals), there was no omission on the part of the appellants to make submissions in relation to commission agent service but learned Commissioner (Appeals) refused to consider the submissions relating to facts relying upon Central Excise (Appeal) Rules, 2001 to take a view that appellant is not entitled to produce evidence other than what was produced before the original adjudicating authority in the course of proceedings before the adjudicating authority. He also relied upon the decision of the Hon'ble Supreme Court in the case of Sanghavi Reconditioners Pvt. Limited 2010 (251) ELT 3 (SC). 3. Learned DR submits that having failed to make correct submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced by him during the course of the proceedings before the adjudicating authority except in the following circumstances, namely :- (a) where the adjudicating authority has refused to admit evidence which ought to have been admitted; or (b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by adjudicating authority; or (c) where the appellant was prevented by sufficient cause from producing, before the adjudicating authority any evidence which is relevant to any ground of appeal; or (d) where the adjudicating authority has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble High Court of Mumbai in the case of Coca-cola India Pvt. Limited 2009 (242) ELT 168 (Bombay) to submit that the term activities relating to business is very wide and the present service is eligible for cenvat credit in the light of the ruling of the Tribunal and the Hon ble High Courts. The appellant had also discussed the notification No. 40/2007 and 41/2007 providing for refund of service tax paid on taxable services. This submission was made in view of the observation in the show cause notice that refund can not be allowed since such services are not in the nature of input service. 7. Facts and circumstances of this case show that the reply of the appellant related to CHA service as far as availment of credit is concerned, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The decision of the Hon ble Supreme Court in the case of Sanghvi Re-conditioners Pvt. Limited 2010 (251) ELT 3 (SC) is not at all applicable to the facts of this case. From the Paragraph reproduced by the learned Commissioner, it is seen that in that case plea of absence of duty liability on part consignment had not been raised before the adjudicating authority or the Tribunal or Settlement Commission and was sought to be raised for the first time before the High Court. The Hon ble Supreme Court took a view that there is no bar in raising the additional ground before the High Courts and Supreme Courts involving pure question of law but not the facts. The Hon'ble High Courts and Hon'ble Supreme Court take up the appeals only when substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that reply related to CHA service. When the grounds are common for both the services and equally applicable, this ground should have been considered. On this ground also, the conclusion reached by the lower authorities are incomplete and have to be held as not having considered the submissions made before them. 11. In view of the above discussion, I have come to the conclusion that in this case, the original adjudicating authority can be said to have not considered the submissions properly and therefore, the matter is required to be remanded for fresh adjudication. I order accordingly. Both, stay petition as also appeal gets disposed of in above manner. (Dictated and pronounced in the Court) - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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