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TMI Blog2021 (3) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication order against the service provider who paid the service tax on the advice of the jurisdictional Superintendent and issued the supplementary invoices dated 4.3.2016 and the appellant on the basis of the said supplementary invoices has taken the CENVAT credit. Further, as per Rule 9 of CENVAT Credit Rules, 2004, supplementary invoices issued by the service provider is a valid and prescribed document for taking CENVAT credit and the only embargo for taking CENVAT credit is when the amounts as contained in the supplementary invoices become recoverable from the provider of service on account of non-levy or non-payment or short-payment or short-levy by reason of fraud, collusion, wilful mis-statement or suppression of facts and contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected the appeal of the appellant and upheld the Order-in-Original. 2. Briefly the facts of the present case are that the appellant is a manufacturer of pig iron and un-machined castings falling under Chapter 72 and 73 of the First Schedule to Central Excise Act, 1985 and has been availing CENVAT credit on inputs, capital goods and input services under provisions of CENVAT Credit Rules, 2004. During the course of audit by the departmental officer, it was observed that the appellant have availed CENVAT credit of service tax paid by Shri K. Basavaraj under the category of Cargo Handling Services during the period March 2016 on the basis of supplementary invoices issued by the service provider but verification conducted by the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that as per Rule 9 of CENVAT Credit Rules, 2004, supplementary invoices / bill or challan issued by a service provider is a valid document for taking CENVAT credit subject to exception contained therein. He further submitted that CENVAT credit is not admissible only when the amounts as contained in the supplementary invoices become irrecoverable from the provider of service on account of non-levy or non-payment or short-levy or short-payment by reason of fraud or collusion or wilful misstatement or suppression of facts or contravention of any of the provisions of the Finance Act, or Rules made thereunder with intent to evade payment of service tax as specified in Clause (bb) of Rule 9(1) of the CENVAT Credit Rules, 2004. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service provider merely on the advice of the Range Superintendent does not satisfy the ingredients of the exceptions contained in Clause (bb) of Rule 9(1) to restrict the credit. Learned counsel submits that it is a settled law laid down by the apex court in the case Metal Forgings vs. Union of India: 2002 (146) ELT 241 (SC) wherein it has been held that issuance of show-cause notice in a particular format is necessary as required under law and not as a correspondence or part of an order. The said notice must specifically indicate the amount demanded and calls upon the assessee to show cause any objection for such demand. He also relied upon the decision rendered in the case of Dharampal Satyapal Ltd. vs. Deputy CCE, Guahati: 2015 (32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ech Cement vs. CCE-II: 2017 (47) STR 237 (Tri.-Del.) Bosch Chasis Systems Ltd. vs. CCE: 2017 (358) ELT 255 (Tri.-Chan.) CCE, Vapi vs. Castrol (I) Ltd.: 2008 (231) ELT 175 (Tri.-Ahmd.) Hindalco Industries Ltd. vs. CCE ST: 2015 (323) ELT 414 (Tri.-Del.) The ratio of the above said decisions are applicable to the facts of the case because in the present case, no proceedings has been initiated against the service provider in terms of proviso to Section 73(1) of the Finance Act, 1994 and hence, denial of CENVAT credit of service tax paid by the service recipient in terms of Rule 9(1)(bb) is patently erroneous. The learned counsel also submitted that the allegations of the department that the appellant has contravened the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -cause notice, adjudication order and the Order-in-Appeal have not mentioned anything regarding the issuance of show-cause notice by the Proper Officer for recovery of service tax from the service provider Shri K. Basavaraj by invoking the proviso to Section 73(1) of the Finance Act, 1994. Further, in view of the judgment of Hon ble apex court in the case of Metal Forgings vs. UOI cited supra wherein it has been held that it is necessary under law to issue a show-cause notice specifically indicating the amount demanded and calls upon the assessee to show-cause any objection for such demand, but the same has not been followed in the present case. Further, I find that it has been consistently held by the Tribunal in the various decisions cite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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