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TMI Blog2017 (7) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 short paid service tax of Rs. 6,24,897/- from the calculation of short paid service tax given in the Annexure to the show cause notice, it is clear that the abatement of 60% available as per Notification No. 9/2004-ST dt. 9.7.2004 was extended. However in the Order-in-Original the demand was confirmed on the ground that the appellant is not entitled for the exemption Notification No. 1/06-ST dt.1.3.2006 on the ground that they have availed cenvat credit. The Ld. Commissioner (Appeals) in the appeal filed by the appellant also decided the eligibility of the Notification No. 9/2004-ST dt. 9.7.2004 and rejected the appeal of the appellant. Therefore the appellant is before us. 2. Shri Mehul Jiwani, Ld. Counsel appearing on behalf of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avail the abatement in terms of Notification No.9/2004 dt. 9.7.2004. As regard the said notification no violation of condition was committed by the appellant. He placed reliance on the following judgments: (i) Commissioner of C. Ex., Bangalore Vs. Brindavan Beverages (P) Ltd. - 2007 (213) E.L.T. 487 (S.C.) (ii) Bank of Baroda Vs. Commissioner of Central Excise, Jaipur-I - 2014 (35) STR 359 (Tri.-Del.) (iii) Delta International Limited Vs. Commissioner of Customs - 2012 (281) E.L.T. 400 (Cal.) (iv) Empire Industries Ltd. Vs. Commissioner of C. Ex., Mumbai-III - 2016 (344) E.L.T. 395 (Tri.-Mumbai) (v) Federation of Indian Chambers of Commerce & Industry Vs. C.S.T. Delhi - 2015 (38) S.T.R. 529 (Tri.-Del.) (vi) Sachin Gandhi Vs. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that the appellant have violated the condition of notification No.9/04-ST. Moreover in the annexure to show cause notice which quantified the differential short paid service tax clearly shows that the show cause notice itself extended, the abatement of 60% as available under the Notification No.9/2004-ST thereafter it is not open for the adjudicating authority as well as the Commissioner (Appeals) to visit to the issue of eligibility of the abatement provided under Notification No.9/04-ST. The entire finding which is based on the said notification is baseless and not flowing from the show cause notice. Therefore the order-in-original as well as the order-in-appeal are not sustainable on the ground on the on which the demand was confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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