TMI Blog2019 (2) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... contradictory to each other as reversal of CENVAT credit was affirmatively stated to have been made and evidencing the same, a chart showing CENVAT credit including closing balance filed vide Annexure-6 was produced. No reason was forthcoming as to why the same was not accepted by the Commissioner (Appeals) as sufficient proof that such mount by way of reversal of CENVAT credit was available that was to be treated as sufficient compliance to mandatory pre-deposit. Therefore, the finding of Commissioner (Appeals) in respect of non-compliance of provision contents in Section 35F is erroneous. Pre-deposit is a mandatory requirement for admission of appeal and not for its dismissal after the appeal has been admitted, heard and taken up for o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 5,79,236/- for the period between April 2012 to September, 2015 by the Commissioner of CGST Central Excise (Appeals), Nagpur in order dated 20.12.2015 is assailed in this appeal. 2. Factual backdrop of this case is that appellant is engaged in the business of construction of residential complex and other amenities and it has been availing CENVAT credit on eligible input services. Audit Officer of CERA, Mumbai, during the investigation of records of appellant for the period between financial years 2010-11 to 2012-13 for subsequent periods, found rent-a-cab service and telephone charges of ₹ 331/- paid for its guest house as inadmissible. Respondent-department issued a show-cause notice dated 15.06.2016 on the appellant dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of CENVAT Credit Rules, 2004 w.e.f. 01.04.2011 would require re-examination vis-a-vis the service provider and not vis-a-vis the service recipient and the interpretation of lower authorities that motor vehicle are not capital goods for the service recipient cannot be appreciated in as much as motor vehicles are admittedly capital goods in terms of Rule 2(a) of CENVAT Credit Rules, 2004. He challenged the adjudication order on the ground that the Adjudicating Authority had travelled beyond the scope of show-cause notice and also the same is barred by limitation as during the relevant period of dispute, decision of Hon'ble Tribunal and Hon'ble High Court were in favour of appellant in respect of eligibility of CENVAT credit on rent- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant had enclosed the chart showing closing balance of CENVAT credit in form vide Annexure-6 with the appeal memo and contented that it had taken CENVAT credit but not utilised the same and reversed the same under protest, as reveals from para 30 of his order. Further referring to clarification on mandatory pre-deposit, while filing appeals, vide F. No. 15/CESTAT/General/2013- 14 dated 28.08.2014 containing instructions that mandatory deposit of duty confirmed can be made from CENVAT credit account, he has given his finding that appellant had failed to produce any evidence of reversal of the same amount of ₹ 5,78,923/- and failed to produce protest letter to substantiate the same. These findings appear contradictory to each other a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T credit wrongly the appellant had contravened CENVAT Credit Rules, 2004 and therefore liable for penalty under 15(3) of CENVAT Credit Rules, 2004 read with Section 78 of Finance Act, 1994. Show-cause notice also indicates that had such a thing not brought by the Audit, such suppression won t have come to the knowledge of department by the CERA Audit. 7. To refute this finding, in placing reliance on the decision of Hon'ble Delhi High Court in the case of Mega Cabs Pvt. Ltd. Vs. UOI and Anr. [2016 (43) STR 67 (Del.)], the learned Counsel for the appellant submitted that in the absence of authority under Finance Act, 1994 CAG is not empowered to Audit on the Service Tax assessees. Be that as it may, going by the basic statutory au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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