TMI Blog2019 (10) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of ready mix concrete (RMC). The department had conducted audit on the records of the appellant. It is observed that the appellant has paid Central Excise duty at concessional rate of 2% without CENVAT credit and from February 2016, they started paying full duty and availing CENVAT Credit. They also have taken centralized registration as well as registration for input service distributor. Auditors pointed out that the appellant availed credit on the strength of service tax paid challan (under reverse charge) whereas they should have availed credit only on the strength of invoices issued by the Input Service Distributor (ISD). It was pointed out that even though the appellant was registered as ISD for their plants at Manipal and Biakam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of challan/invoices without ISD invoices. The Order-in-Original confirmed the allegation in the show-cause notice ad-verbatim. Further, he argued that the Commissioner (A) at para 11 of the impugned order has held that main issue in the present case is eligibility of credit which is totally incorrect and Commissioner (A) is trying to make a completely new case as this was never the allegation/ground for rejection. He further submitted that it is well settled that the Department cannot travel beyond the allegation leveled in the show-cause notice, hence, the impugned order is liable to be set aside on this ground alone. For this submission, the appellant relied upon the following decisions: * Commissioner of Central Excise, Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service and its utilization is accepted, CENVAT credit cannot be denied. It is his further submission that the Commissioner (A) has also observed in para 10 of the impugned order that certain input services are received by Biakampady Unit and the invoices are raised in their name and apparently it appears that the Biakampady Unit is entitled to avail CENVAT credit on the same. He has further observed that in respect of service tax paid under reverse charge mechanism, the respective unit is eligible to avail CENVAT credit. He submitted that once the Commissioner (A) has admitted and has observed in para 10, therefore, the Commissioner (A) cannot reject the refund on eligibility issue. 4.3 Further, learned counsel submits that there is no p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice was issued only on the ground that the CENVAT credit has been availed on the basis of challan and not on the basis of invoices issued by the ISD. The Commissioner (A) has travelled beyond the show-cause notice and has also questioned the eligibility of credit availed by the appellant and has also remanded the case to the original authority to examine the question of eligibility of credit which in view of the decision of the Hon'ble Supreme Court in the case of Toyo Engineering India Ltd. cited supra is not tenable in law. Further, it has been consistently held by the Tribunal in the decisions cited supra that if the eligibility of credit is not questioned by issuance of show-cause notice under Rule 14 of CENVAT Credit Rules, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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