TMI Blog2016 (12) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... s. This aspect has not been considered in the impugned order. Flexibility in assigning a meaning to the expression ‘premises’ should have found a place in the impugned order. The lack thereof may be attributed to the digression to matters not contemplated in the notice. This want of proper disposal of the show cause notice must be remedied before we can take a decision on the legality and propriety of the disposal of the allegations in the show cause notice. Demand set aside - Matter remanded back. - ST/86352/2013 - A/93678/16/STB, S/93679/16/STB - Dated:- 4-11-2016 - Shri Ramesh Nair, Member (Judicial) and Shri C J Mathew, Member (Technical) Shri A.R. Madhav Rao, with Shri Mihir Deshmukh and Ms. Pragya Awasthi, Advocates for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the contention of the appellant that the invoking of the extended period under the proviso to section 73(1) of Finance Act, 1994 is inappropriate, Learned Special Counsel relied upon the decision of the Tribunal in Balaji Society v. Commissioner of Central Excise, Pune - III [2015 (38) STR 139 (Tri-Mumbai)]. 3. Appellant, a provider of telecommunication service is licenced by the Government of India under the Indian Telegraph Act, 1885 and the activities are regulated by the Telecom Regulatory Authority of India (TRAI). The appellant provides seamless service through wireless mode linking subscribers of their own or other service providers using equipment installed at several locations. 4. We do not propose a foray into the jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the factory of manufacture of final product or premises of the provider of output service on or after the 10th day of September, 2004; and (ii) any input service received by the manufacturer of final product or by the provider of output services on or after the 10th day of September, 2004 .. (5) When inputs or capital goods, on which CENVAT credit has been taken, are removed as such from the factory, or premises of the provider of output service, the manufacturer of the final products or provider of output service, as the case may be, shall pay an amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in rule 9: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined, viz., 9 The question to be decided is whether FWPs installed in the subscriber 's premises are to be treated as input or capital goods for providing the taxable services by the Noticee or not.' 8. That availment such credit is barred from being availed owing to the limitation of rule-making power of the Central Government has been adduced thus '17. Further. Section 37 of the Central Excise Act, 1944 empowers Central Government to make rules to carry into effect the purpose of the Act. Clause xvi(a) of sub-section 2 of Section 37 of the Central Excise Act, 1944, empowers to make rule to provide for credit of duty paid or deemed to have been paid on the goods used in or in relation to the manufacture of excisabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FWP by the Noticee is not legally sustainable. It is, therefore, a clear case of wrong availment of Cenvat credit and the amount wrongly availed is liable to be recovered along with interest in accordance with Rule 14 of Cenvat Credit Rules, 20024. ' 10. The non-consideration of the contraventions enumerated in the notice is unambiguously stated thus 19. I do not propose to examine the issue as to whether FWP is to be treated as input or capital goods since the Noticee is in any case not fulfilling the essential requirement of availment of Cenvat credit on FWP ' 11. The impugned order has devoted merely one short paragraph to countering the contention of the appellant that the subscriber's premises must, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. Though the adjudicating authority has acknowledged the decisions of the Tribunal in Commissioner of Central Excise, Chennai v. Pepsico Holdings Ltd [2001 (130) ELT 193 (Tri-Chennai)] , Hindustan Coco Cola Beverages Pvt Ltd v. Commissioner of Central Excise, Thane-I [2005 (190) ELT 287 (Tri-Mumbai)] and Jaypee Bela Plant v. Commissioner of Central Excise, Bhopal [2005 (180) ELT 131 (Tri-Del)] which have held that the placing of equipment outside the premises of the manufacturer would not impede the availment of credit as long as the physical link with premises of manufacturer is maintained, he has not discussed the application of the ratio in these decisions to the contentions of the appellant and, instead peremptorily dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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