TMI Blog2023 (6) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... d under RCM since the appellant is a private limited company. However, in the impugned order, the demand has been confirmed on a different basis altogether that the appellant has earned freight income from its client and since the appellant has not issued consignment notes which they were statutorily required to do so, the appellant cannot claim any relief by not paying service tax - the impugned order has travelled beyond the scope of SCN, which is the very foundation in the matter of levy and recovery of duty and the authorities are required to restrict to the allegations what has been set out in the notice. Non-compliance with the said principles vitiates the entire proceedings which is legally not permissible. In any case, it is foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Shri Devesh Poddar, both Advocates for the Appellant (s) Shri J.Chattopadhyay, Authorized Representative for the Revenue ORDER Per : P.K. CHOUDHARY : In this appeal, the adjudication order dated 01.05.2012 passed by the Ld. Commissioner, Service Tax, Kolkata, for the period 2006-07 to 2009-10 has been assailed by the assessee whereby Show Cause Notice dated 19.11.2011 has been adjudicated. Demand of service tax has been confirmed on two issues (i) Goods Transport Agency services for an amount Rs. 3,29,26,352/-and (ii) denial of Cenvat credit on input services of Rs. 92,80,442/-, which are the subject matter for consideration in this appeal. Penalty under Section 78 has also been imposed. 2. Briefly stated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant on the invoices issued by the service providers, namely, M/s. Ridhi Sidhi Mercantile Pvt Ltd and M/s. Sakshi Trade Link Pvt Ltd, has been disallowed on the ground that the said service providers were found to be non-existent at their office address since the Department could not trace the service providers. 3. Heard Sri Rajeev Agarwal and Sri Devesh Poddar, both Advocates, for the appellant and Sri J. Chattopadhyay, Ld. A/R, for the Revenue and perused the appeal records. 4. The Ld. Advocate appearing for the appellant submitted that impugned order confirming the demand under GTA has travelled beyond the allegations made in the SCN. He placed reliance on the decision of Hon ble Supreme Court in CCE, Nagpur vs. Ballarpur Industri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has been carried out by the Departmental Officers. The service providers are Pvt. Ltd. Companies are registered with service tax authorities having Income tax PAN. No allegations has been made the credit in question has been taken by the appellant in connivance with the service providers. He also submitted that no allegation has been made whether service tax amount which has been paid by the appellant has not been deposited by the service providers to the credit of Government Exchequer. He also submitted that the invoice amount alongwith service tax amount have been duly paid through cheque which fact is not in dispute. He relied on the following judgements to submit that the credit has been disallowed based on the surmises and conject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to do so, the appellant cannot claim any relief by not paying service tax.We agree with the submissions made by the appellant that the impugned order has travelled beyond the scope of SCN, which is the very foundation in the matter of levy and recovery of duty and the authorities are required to restrict to the allegations what has been set out in the notice. Non-compliance with the said principles vitiates the entire proceedings which is legally not permissible. In any case, we find that even the Ld. Commissioner has accepted in the order that the lorry suppliers were not required to issue consignment notes. Once the same is duly accepted, it cannot be said the appellant has received any GTA services from the lorry suppliers. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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