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TMI Blog2014 (5) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... nd without mentioning the said amount in the show cause notice, no order could be passed by as any order passed by the adjudicating authority beyond the scope of show cause notice is wholly without jurisdiction. Accordingly, we hold that the order passed by the CESTAT setting aside the order of adjudicating authority is justified - Decided against Revenue. - CEA No. 124 of 2007 - - - Dated:- 8-9-2011 - V.G. Sabhahit and B. Manohar, JJ. Shri A.A. Pathan, Advocate, for the Appellant. Shri Suresh N. Kini, Advocate, for the Respondent. JUDGMENT This appeal is filed by the Revenue being aggrieved by the order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore in Appeal No. E/1064/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to Rs. 5,47,536/- (Rupees Five Lakh Thirty Seven Thousand Five Hundred Thirty Six only) should not be demanded and recovered form them under first proviso to Section 11A of Central Excise Act, 1944 read with Rule 12 of Cenvat Credit Rules, 2001 and present Rule 12 of Cenvat Credit Rules, 2002. (iii) Interest on (i) and (ii) above should not be demanded from them under Section 11AB of Central Excise Act, 1944. (iv) Penalty should not be imposed on them under Section 11AC of Central Excise Act, 1944. Thereafter, the assessee filed reply to the show cause notice and the adjudicating authority by order dated 31-5-2006 in Order-in-Original Sl. No. 14/2006(JC) held that the recovery should be made as per the proposal made in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal manufacturer and further held that that there is proposal for imposing duty and penalty on the said 2.04% loss of copper and accordingly allowed the appeal. Being aggrieved by the said order passed by the CESTAT, this appeal is filed by the revenue which was admitted on 30-10-2007 for consideration of the following substantial question of law : Whether the Tribunal has rightly applied the ratio of the decision reported in 2005 (183) E.L.T. 353? 3. We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 4. Learned counsel appearing for the appellant submitted that admittedly scrap materials were removed without paying duty and therefore show cause notice bad been issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the de novo order passed by the adjudicating authority is not based upon the valuation of the scrap materials removed as duty, has been paid before removing the said scrap material and duty is demanded in respect of the loss of 2.04% to be recovered while enamelling copper which was not at all proposed in the show cause notice. It is well settled that the order of adjudicating authority should be confined to the proposals made in the show cause notice and without mentioning the said amount in the show cause notice, no order could be passed by as any order passed by the adjudicating authority beyond the scope of show cause notice is wholly without jurisdiction. Accordingly, we hold that the order passed by the CESTAT setting aside the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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