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TMI Blog2017 (12) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... , engaged in providing telecommunication services to its subscribers and is registered with the Department. The appellant was also engaged in activities, namely interconnection with other networks, wherein certain commercial and technical arrangements were entered under which the telegraph authorities connected their equipment, networks and services with each other to enable their customers to have access to the customers, services and networks of the other telegraph authority. The service tax was charged and paid by the telegraph authority, from its subscriber, who was getting such service. Each Telegraph authority shared part of amount charges for service as Interconnect User Charges with other telegraph authorities, however, such part wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted its reply contending that the restriction in Rule 6(3) of CCR is not applicable in respect of credit taken on input services specified under Rule 6(5) of CCR as well as Cenvat Credit taken on capital goods. It was further submitted by the Appellant that the provision has not specified any particular period in respect of restriction on utilisation of credit only to 20% service tax liability. Therefore, the Appellant has not utilised the credit in excess. 6. The said Show Cause Notice was adjudicated through Order-in-Original No. 24/Commissioner/Lko/ST/2010 dated 27.8.2010 and the Adjudicating Authority accepted the submission of the appellant that the restriction contained in Rule 6(3) of CCR is not applicable in respect of credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, in confirming the demand on account of credit taken on capital goods, the Ld. Adjudicating Authority had travelled beyond the scope of the Show Cause Notice and the impugned order ought to be set aside on this ground alone. Show Cause Notice is the foundation of the case made out by the department and the adjudicating authority cannot travel beyond such show cause notice. Such impugned order thus in violation of the principles of natural justice also. Reliance was placed on Commissioner of Customs, Mumbai Vs. Toyo Engineering India Ltd. 2006 (201) and Commissioner of Central Excise and Customs, Gujarat Vs. Sun Pharmaceutical Industries Ltd. - 2015 (326) ELT 3 (SC). 8. The Ld. Counsel for the Appellant further contended that the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Ltd. Vs. Commissioner of Central Excise, Rohtak - 2009 (16) STR 712 (Tri.-Del) and Vijyanand Roadlines Ltd. Vs. Commissioner of Central Excise, Belgaum - 2007 (7) STR 219. 9. Lastly, it was contended by the Ld. Counsel for the Appellant that the service interconnection usage was not subject to service tax and it was known to the Department, as prevalent practice in the industry and therefore, the demand for extended period is not sustainable, the demand is based solely on the ST-3 Returns filed by the Appellant. Reliance has been placed on the decision of Accurate Chemicals Industries Vs. Commissioner of Central Excise, Noida - 2014 (300) ELT 451 (Tri.-Del.). The action of the Appellant was bonafide and all the facts were recorded in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in the subsequent months. Thus, the entitlement of INR 1,11,45,561/- (INR 20,66,664/- + INR 90,78,897/-) is in excess of INR 59,77,551/- which is the short fall in the month of January, 2005. We are in agreement with the ratio of the decisions on this issue in the matter of Idea Cellular Ltd. Vs. Commissioner of Central Excise, Rohtak - 2009 (16) STR 712 (Tri.-Del) and Vijyanand Roadlines Ltd. Vs. Commissioner of Central Excise, Belgaum - 2007 (7) STR 219 where it was held that utilisation is not restricted to monthly or quarterly basis and it can be utilised at any point of time. In view of the same the demand of INR 59,77,551/- confirmed on this issue is thus not sustainable and is set aside. 13. Since the demands confirmed are set a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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