TMI Blog2015 (9) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... hat service provider was not liable pay the tax, the Revenue could not have raised a totally new ground before the Tribunal. The submission of the learned counsel and the reliance upon the decision in the CC Mumbai Vs Toyo Engineering India Ltd [2006 (8) TMI 184 - SUPREME COURT OF INDIA] is relevant. - Decided against Revenue. - ST/1401/2010 - - - Dated:- 3-3-2015 - B S V Murthy, Member (T),J. For the Appellant : Mr Mohammad Yusuf, AR For the Respondent : Mr M S Nagaraja, Adv ORDER Per: B S V Murthy: Assessee is engaged in the manufacture and export of iron ore fines. They filed refund claim for an amount of ₹ 31,34,108/- for the period from January 2009 to March 2009 under Rule 5 of CENVAT Credit Rules 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmittedly the tangible goods supplied have been used within the mines. The appeal filed by the Revenue does not quantify the amount which has been allowed correctly and limited the appeal to the amounts which are clearly inadmissible according to their own view. In any case, it has been consistently held by this Tribunal that what is to be examined at the receiver's end is whether service tax has been paid by the service provider or not and whether the service is liable to tax or not. The above point is part of the assessment of the service and the service receiver is not accepted to undertake assessment activity in respect of services received by them which is basically responsibility of service provider and the Revenue. Even though th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be allowed to raise these submissions for the first time in the second appeal before the Tribunal. Neither adjudicating authority nor the appellate authority had denied the facility of the project import to the respondent on any of these grounds. These grounds did not find mention in the show cause notice as well. The Department cannot be travel beyond the show cause notice. Even in the grounds of appeals these points have not been taken. Therefore the appeal itself could not have been filed on a totally new ground. The discussion above would show that whether it is on merits or on legal grounds, the appeal cannot be allowed. Accordingly, the appeal is rejected. (Order pronounced in open court) - - TaxTMI - TMITax - Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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