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2015 (10) TMI 1571 - HC - Service TaxDenial of CENVAT Credit - scope of the show cause notice - input services - Availment and utilization of credit before actual installation of the capital goods - Port Services - service tax paid under section 66 A of the said Act is not qualified to avail the Cenvat credit as the same has not been specified under Rule 3 of Cenvat credit Rule 2004 - Held that - Issues raised in the questions proposed do not find place in the show cause notice. - In the show cause notice, the assessee was not called upon to state as to whether the services of Consulting Engineers and Banking and other Financial Services are input services of the respondent or as to whether the capital goods were used for providing output services provided by the respondent viz. Port Services , etc. Evidently therefore, in the present appeal, the appellant seeks to challenge the impugned order passed by the Tribunal on grounds which were never subject matter of the show cause notice. In the light of the settled legal position as emerging from the above referred decisions of the Supreme Court, that the show cause notice is the foundation of the demand under the Central Excise Act and that the order-in-original and the subsequent orders passed by the appellate authorities under the statute would be confined to the show cause notice, the question of examining the validity of the impugned order on grounds which were not subject matter of the show cause notice would not arise. - In the absence of any infirmity in the findings recorded by the Commissioner or the Tribunal, there is no warrant for interference. The questions proposed by the appellant which were not subject matter of the show cause notice, do not arise out of the impugned order passed by the Tribunal - Decided against Revenue.
Issues Involved:
1. Eligibility of CENVAT Credit for Service Tax paid under Section 66A of the Finance Act, 1994. 2. Appropriateness of CENVAT Credit on capital goods before their installation. 3. Legitimacy of the Tribunal's decision to uphold the CENVAT Credit of Rs. 59,82,52,117. Detailed Analysis: Issue 1: Eligibility of CENVAT Credit for Service Tax paid under Section 66A of the Finance Act, 1994. The appellant challenged the Tribunal's decision permitting CENVAT Credit for Service Tax paid under Section 66A for services categorized as "Consulting Engineer" and "Banking and other Financial Service." The Commissioner, relying on the Ministry's instructions and legal provisions, clarified that Section 66A creates a legal fiction deeming imported services as provided within India, thus making them eligible for CENVAT Credit if they qualify as "input services." The Commissioner referenced a clause added retrospectively to Rule 3(1) of the CENVAT Credit Rules, 2004, which allowed credit for Service Tax paid under Section 66A. The Tribunal upheld this interpretation, dismissing the department's appeal. Issue 2: Appropriateness of CENVAT Credit on capital goods before their installation. The Commissioner noted that under Rule 4(2)(a) of the CENVAT Credit Rules, 2004, 50% of the CENVAT Credit on capital goods can be availed in the same financial year they are received, and the remaining 50% in subsequent years. The Commissioner clarified that the condition of installation for availing credit, effective until 09.09.2004, was not applicable to the goods procured by the respondent in 2007-08. The Tribunal confirmed that there was no precondition of installation for availing CENVAT Credit on capital goods post-09.09.2004, aligning with the CBEC circulars and previous judicial decisions. Issue 3: Legitimacy of the Tribunal's decision to uphold the CENVAT Credit of Rs. 59,82,52,117. The appellant argued that the Tribunal overlooked whether the services and capital goods qualified as "input services" and were used for providing "output services" like "Port Service." However, this contention was not part of the original show cause notice, which only questioned the eligibility of CENVAT Credit for Service Tax paid under Section 66A and the timing of availing credit on capital goods. The court emphasized that the show cause notice is foundational for any demand under the Central Excise Act, and any grounds for appeal must be confined to the issues raised therein. Since the Tribunal's decision was based on the grounds specified in the show cause notice, the court found no basis for interference. Conclusion: The court dismissed the appeal, affirming that the issues raised by the appellant were not part of the original show cause notice and thus could not be considered. The Tribunal's decision to uphold the CENVAT Credit was found to be legally sound and aligned with the provisions and clarifications of the CENVAT Credit Rules, 2004.
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