TMI Blog2018 (6) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... hat some of the invoices did not contain the Service tax Registration number of the service provider - Held that:- During the course of hearing the Ld. Advocate for the appellant submitted that the assessee-appellant was not put on notice i.e., this point was never alleged in the SCN and, therefore, the impugned order has travelled beyond the scope of the SCN - the denial is thus not as per law and the Cenvat credit needs to be allowed in favour of the assessee - denial of credit set aside. Denial of CENVAT credit on the outdoor catering service - Held that:- Ld. Counsel submitted that the assessee-appellant was not put on notice i.e., this point was never alleged in the SCN and therefore, the impugned order has travelled beyond the scop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant did not produce the original invoices for verification, Cenvat credit was therefore availed on ineligible documents. During the personal hearing before the adjudicating authority, the appellant could produce invoices to a larger extent but however in respect of some of the invoices it was alleged that those invoices did not carry the service tax registration number of the service provider. Thus, demand to an extent of ₹ 15,32,066/- was confirmed on the ground that the credit was claimed on the basis of photocopy of the invoices, the rest of the demand of ₹ 5,26,874/- was confirmed alleging that the invoices which were produced did not contain the service tax registration number of the service provider. 3. It is the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that the matter on this issue is required to be re-adjudicated by the adjudicating authority and hence, the appeal is remanded to the file of the adjudicating authority for verification of balance invoices, to his satisfaction. The appellant is also directed to furnish all the remaining invoices in original within reasonable time frame to be granted by the adjudicating authority who shall pass order in accordance with law and with these directions, this issue is disposed of. 4.3 The second issue agitated by the appellant is that the Cenvat credit in some cases have been denied on the basis that some of the invoices did not contain the Service tax Registration number of the service provider. During the course of hearing the Ld. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice. {See : Commissioner of Customs, Mumbai v. Toyo Engineering India Limited - (2006) 7 SCC 592, para 16}. 51. Similar view was expressed by this Court in the case of Commissioner of Central Excise, Nagpur v. Ballarpur Industries Ltd. - (2007) 8 SCC 89. In paragraph 27 of the said report, learned Judges made it clear that if there is no invocation of the concerned rules in the show cause notice, it would not be open to the Commissioner to invoke the said Rule. 52. Learned counsel for the Revenue also relied on some judgments. 53. It relied on the case of Oswal Agro Mills Ltd. and Ors. v. Collector of Central Excise and Ors. - 1993 Supp. (3) SCC 716. In that case the Court allowed the appeal filed by the assessee and did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on the decision of this Court in Hindustan Poles Corporation v. Commissioner of Central Excise, Calcutta - (2006) 4 SCC 85. In fact the judgment in that case does not at all advance the case of the appellant-Revenue. In paragraph 39 of the judgment it has been held that the residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries and unless the Department can establish that the goods in question can, by no conceivable process of reasoning, be brought under any of the tariff items, resort cannot be had to the residuary item. 58. Following the said principle, as we must. In the instant case, the goods manufactured by the respondent-company fall clearly under the specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided in favour of the tax payer. 4.6. With regard to the credit availed on civil works and rent a cab service, the Ld. Counsel appearing for the appellant submits that the appellant has already reversed the credit suo moto and has also paid the interest which fact was not disputed by the Ld. AR. It is argued that the said services pertain to general repair and maintenance carried out in a plant premises which did not involve civil works. However, this factual aspect requires verification and therefore for this limited issue of verification, this ground is remanded back to the file of the adjudicating authority to decide afresh after providing reasonable opportunity to the assessee. 5. The last ground of the appeal is that on the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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