TMI Blog2019 (9) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 2004. He holds that for availing of Cenvat Credit, the noticee must pay the value of input service check with the documents submitted by the appellants as to the correctness of their claim - We find that for this issue, it is required to go through the claim of the appellants about the arithmetical correctness of the duty paid by them through Cenvat Credit, verification needs to be undertaken by the Adjudicating Authority - matter remanded back for reconsideration. Benefit of Cum Duty value while computing the duty liability - HELD THAT:- The appellants are a Public Sector Undertaking and as such, as held by the Tribunal as well as various Courts Mens- aria cannot be assumed in respect of PSUs - It was consistently held that no partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by them through Cenvat Credit while he has appropriated the amount paid by cash. Ld. Counsel for the appellants relied on the following case laws to support their point that the adjudicating authority cannot be traverse beyond the issues set out in the Show Cause Notice.:- (i) CCE Vs. Ballarpur Indust. Ltd. [2007 (215) ELT 489 (SC)] (ii) CCE Vs. Toyo Engg. India Ltd. [2006 (201) ELT 513 (SC)] (iii) CCE Vs. Shital International [(2011) 1 SCC 109] (iv) Reckitt Colman of India Ltd. Vs. CCE [1996 (88) ELT 641 (SC)] (v) Prince Khadi Woolen Handloom Prod. Coop. Indl. Society Vs. CCE [1996(88) ELT 637 (SC) (vi) CCE Vs. Nepa Ltd. [2013 (298) ELT 225 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings as the same. Regarding the applicability of Cum Duty benefit, Ld. AR submits that the case being built on suppression of fact by the appellants, Commissioner has rightly denied the Cum Duty benefit. 4. At this juncture, Ld. Counsel for the appellants submits that since the liability of Service Tax has been slapped on them, they have submitted that a part of the demand has been paid. Further, they have reflected the same in the returns to submit that without going into the correctness or otherwise of the Cenvat Credit availed by initiating a proper enquiry at the relevant time, the Commissioner could not have passed a judgment on the availment and utilization of Cenvat Credit. More so, when the Show Cause Notice does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f electrifying polish, now pressed into service by the Revenue, it is trite law that unless the foundation of the case is laid in the Show Cause Notice, the Revenue cannot be permitted to build up a new case against the assessee. (See Commr. Of Customs V. Toyo Engg.India Ltd., CCE. V. Ballarpur Industries Ltd. and CCE V. Champdany Industries Ltd.) Admittedly, in the instant case, no such objection was raised by the adjudicating authority in the Show Cause Notice dated 22.06.2001 relating to Assessment Years 1988-1989 to 2000-2001. However, in the Show Cause Notice dated 12.12.2000, the process of electrifying polish finds a brief mention. Therefore, in the light of the settled legal position, the plea of the learned counsel for the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue must give to the appellants a notice to Show Cause in this regard and the matter must be processed from that stage. 7. We find that by applying the ratio of the above judgments, the Ld. Counsel submits that the Commissioner has gone beyond the scope of the Show Cause Notice while passing the impugned order whereas the Ld. AR vehemently opposes the contentions and says that only when the appellants have submitted that a part of the demand has been paid through Cenvat Credit, Ld. Commissioner had to go into the issue to find that Ld. Commissioner held that the condition for allowance of Cenvat Credit in respect of input service is as per Rule 4 (7) of the Cenvat Credit Rules, 2004. He holds that for availing of Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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