TMI Blog2019 (4) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... authority for quantification of the amount to be reversed by the appellant-assessee - Also, for consideration of the prescribed formula, the learned Commissioner (Appeals) has not specifically issued any notice to the appellant-assessee for the defence submissions - Hence, consideration of altogether a new ground in the impugned order cannot be sustained for judicial scrutiny and accordingly, the appeal of the appellant-assessee should succeed on such ground. Non-filing of intimation/declaration before the jurisdictional Central Excise officer regarding availment of option is a procedural lapse inasmuch as the information required to be contained in the declaration was already available with the department, which were furnished in the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of common input service credit was disputed by the department on the ground that cenvat credit in respect of trading activity is not permissible in terms of Rule 6 of the Cenvat Credit Rules, 2004. Subsequently, the appellant-assessee had reversed the cenvat credit and also paid interest thereon. Upon reversal of the cenvat amount, the department initiated show cause proceedings against the appellant-assessee, seeking for recovery of an amount of ₹ 29,29,187/- in terms of Rule 6(3)(i) of the rules. The reason for issuance of show cause notice was that the appellant-assessee had failed to file intimation/declaration as provided under Rule 6(3)(ii) read with Rule 6(3A) of the rules. The matter was adjudicated by order dated 27.01.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage, which was not proposed in the stage of show cause notice, the appellant-assessee has relied on the following decisions rendered by the judicial forums: (i) CCE vs. Toyo Engg. India Ltd. 2006 (201) ELT 513 (SC). (ii) CCE vs. Ballarpur Industries Ltd. 2007 (215) ELT 489 (SC). 3. Heard both sides and perused the records. 4. On perusal of the show cause notice, I find that there was no specific allegation made therein regarding adoption of wrong formula by the appellant-assessee. Since the learned Commissioner (Appeals) has held that non-filing of intimation/declaration is a procedural lapse, he should have allowed the appeal in favour of the appellant-assessee, instead of remanding the matter to the adjudicating aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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