9911796707
TMI Blog2017 (12) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... hortfall - Held that: - it is evident from the Table that the Appellant was entitled to further utilise credit amounting to INR 20,66,664/- and INR 90,78,879/- in the months of November and December, 2004 and there is no bar in law to restrict the utilisation of such quota of entitlement in the subsequent months. Thus, the entitlement of INR 1,11,45,561/- (INR 20,66,664/- + INR 90,78,897/-) is in excess of INR 59,77,551/- which is the short fall in the month of January, 2005 - reliance placed in the case of Vijyanand Roadlines Ltd. Vs. Commissioner of Central Excise, Belgaum [2006 (12) TMI 56 - CESTAT,BANGALORE] where it was held that utilisation is not restricted to monthly or quarterly basis and it can be utilised at any point of time - t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on such shared amount (between the service providers). The CBEC also vide its Circular No.91/2/2007-ST dated 12.03.2007 clarified that such interconnect usage charges (IUC) were not taxable. The activity of interconnection became taxable w.e.f. 01.6.2007 under telecommunication service. 3. The Appellant was availing CENVAT credit on inputs, input services and capital goods and utilizing the same for discharging its liability of service tax on output services. 4. The Appellant was issued a Show Cause Notice No.19/Commr./LKO/2009-10 dated 07.09.2009 for the period November, 2004 to May, 2007 alleging that the Appellant was providing both taxable and non-taxable service (IUC) and was thus required to maintain separate accounts in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on capital goods. However, the Ld. Commissioner held in the Order-in-Original that the credit amounting to INR 7,63,18,307 availed on Capital Goods was not admissible, therefore, he disallowed such credit and confirmed demand for the same. He, further, held that in the month of January, 2005, there was excess utilisation of Cenvat Credit to the tune of INR 59,77,550/-, which should have been paid in cash, therefore, such utilisation of credit was disallowed and demand in respect of the same was confirmed. Thus, the demand amounting to INR 8,22,95,857/- (7,63,18,307/- + 59,77,550/-) on account of excess utilization of Cenvat Credit and credit on capital goods was confirmed under Rule 14 of CCR read with Section 73 (1) of the Finance Act, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 20% of the service tax liability payable on its output services as there was no bar of utilization on monthly basis. Through the Table (reproduced below) available on page 13 of the impugned order, it was explained that the Appellant had not utilised the full limit of the quota in the months of November and December, 2004 as the Appellant was entitled but short utilised credit to the tune of INR 20,66,664/- and INR 90,78,897/- respectively as evident from the Table below. PERIOD SERVICE TAX PAYABLE PAID BY CENVAT CREDIT TOTAL ADMISSIBLE CENVAT CREDIT (DOES NOT COME UNDER THE AMBIT OF RESTRCITION IMPOSED BY RULE 6(3) OF CCR MAXIUM ADMISSIBLE CREDIT AVAILABLE FOR DISCHARGING THE SERVICE TAX LIABLITY IN TERMS OF Rule 6(3) (c) OF Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At any rate, the situation involved interpretation of complex legal provision and thus, extended period was not invocable. 10. Heard the Ld. DR Shri Mohammad Altaf, who was supported the Impugned Order-in-Original. 11. Having considered the rival contentions, we find that the impugned order, while disallowing the credit on capital goods, has travelled beyond scope of the show cause notice. It is a settled principle of law that no demand can be sustained unless the same is based on a proposal in the Show Cause Notice. The Show Cause Notice is the foundation in the matter of demand and recovery of duty, penalty and interest as held by the Apex Court in the case of CCE Vs. Ballarpur Industries Ltd. [2007 (215) E.L.T. 489 (S.C.)]. Once the S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
