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TMI Blog2018 (11) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... ailment of CENVAT Credit is to be satisfied uniformly in all cases. Scope of SCN - Held that:- The Show Cause Notice dated 06.04.2009 has been issued on the proposition that the assessee cannot avail the simultaneous benefit of Credit of duty paid on inputs and capital goods under the CENVAT Credit Rules, 2004 as also the exemption under Notification No. 15/2004-ST dated 10.09.2004 and Notification No. 01/2006-ST dated 01.03.2006. This is specifically indicated in para 3.3 of the Show Cause Notice. However, the discussions leading to the conclusions in the impugned Order take a totally different route - The adjudicating authority proceeds on this tangent and holds that the appellant have not proved with any documentary evidence that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No. 15/2004-ST dt. 10.09.2004 and Notification No. 01/2006-ST dt. 01.03.2006 which exempted taxable service whereby service tax was required to be paid only on 33% of the gross amount whereas on other projects appellants were paying service tax on the entire gross amount without availing such exemption Notifications. It further appeared that appellants had taken credit of duty on capital goods and other inputs and input services during the year 2006-07; however, as per the Notification No. 15/2004-ST, etc., the exemption shall not apply where credit of duty on inputs or capital goods has been taken. 1.2 The Department therefore took the view that since the appellants had taken CENVAT Credit, the exemption under Notification Nos. 15/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Ltd. 2015 (325) E.L.T. 431 (S.C.) wherein the Hon ble Supreme Court held that simultaneous availment of SSI exemption and CENVAT Credit is permissible. The Court observed that when goods bearing the brand name of others are manufactured, such goods are outside the purview of SSI Notification and thus, the embargo contained in the Notification will not be applicable. (iii) The impugned Order has also admitted, at Paragraph No. 5.8, that the requirement of the condition of non-availment of CENVAT Credit is service specific. The requirement of the condition of non-availment of CENVAT Credit is service specific. In the instant case, the appellant had executed 40 projects out of which they have availed the benefit of abatement only wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays aware of the various activities undertaken by the appellant. The issue is also one of interpretation and the appellant has no intention to evade payment of tax and there is no element of fraud, etc. (ix) No penalty is imposable in the facts and circumstances of the case. The matter involves substantial question of interpretation. In any case, Section 80 of the Finance Act, 1994 provided for waiver of penalties. 3. On the other hand, Ld. AR Shri. K. Veerabhadra Reddy supported the findings in the impugned Order. 4.1 We find that the Ld. Advocate is correct in his assertion that the issue whether in cases of abatement has been settled in their favour in the case of Bharat Heavy Electricals Ltd. (supra), wherein it has been held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority observes that as pointed out by me the Show Cause Notice and the assessee have taken the same view that the notification is service specific only and I am also in agreement with the same. The adjudicating authority proceeds on this tangent and holds that the appellant have not proved with any documentary evidence that they have not availed or taken the CENVAT Credit on the inputs/capital goods/input service in such cases for which they availed abatement. We therefore find merit in the contention of the Ld. Advocate that the impugned Order has travelled beyond the scope of the Show Cause Notice. 5. We also find merit in the contention of the Ld. Advocate that the works done by the appellant which are in the na ..... X X X X Extracts X X X X X X X X Extracts X X X X
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