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TMI Blog2022 (11) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... ts jurisdictional authority. In view of the aforesaid decision of the Tribunal, since the basis of the initiation of the current proceedings by the department for the period in issue itself has gone, the current proceedings can t survive - appeal allowed. - Excise Appeal No. 88927 of 2018 - FINAL ORDER No: A/86096 / 2022 - Dated:- 23-11-2022 - MR. AJAY SHARMA, MEMBER (JUDICIAL) Shri Prabhat Kumar, Chartered Accountant for the appellant Shri Xavier Mascarenhas, Supdt. (AR) for the respondent ORDER This appeal has been filed by the appellant assailing the order dated 27.02.2018 passed by the Commissioner (Appeals- III), CGST Central Excise, Mumbai in Order-in-Appeal No NA/GST A-III/MUM/430/17-18 by which the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cum Penalty notice is based on the Order-in-Original No.PKS/30/2016-17 dated 23.12.2016 and the information/details of Service Tax Credit availed for the period from May, 2015 to March, 2017 submitted by the assessee vide their letter dated 28.4.2017 received on 02.05.2017. 6. M/s. GP Petroleums Ltd. would be heard in person only on the limited issue of appropriateness in quantification of duty demanded, as the issue of non-eligibility of Service tax Credit has already been decided on merit by the Deputy Commissioner in his order dated 23.12.2016. Not only that the learned Commissioner herein while passing the impugned order has recorded a specific finding that in spite of the fact that the issue has been decided in adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper. The appellant challenged the same, matter was adjudicated and duty demand was confirmed in the Order-in-Original and Order-in-Appeal by way of dismissal of appellant s appeal before the Commissioner (Appeals) and the matter has ultimately reached the Tribunal. 3. In the memo of appeal and during the course of hearing of appeal, learned Counsel for the appellant Shri Prabhat Kumar has submitted that in view of Rule 2(M) and Rule 7 of CENVAT Credit Rules, 2004 the ISD receives invoices under Rule 4A of the Service Tax Rules, 1994 towards purchase of input services and issues challans for the purpose of distributing the credit of Service Tax paid on the said services to its manufacturing unit. In view of the decision of Ahmedabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning and rationality found in the order of Commissioner (Appeals) and submitted that appellant had admittedly availed inadmissible credits, some of which were specifically excluded by way of amendment introduced to CENVAT Credit Rules in 2011 for which interference in the order of Commissioner (Appeals) is uncalled for. 5. Heard from both sides at length and perused the case records as well as the judgment of Godfrey Philips India Limited (supra) on which heavy reliance had been placed by the appellant. The relevant portion of the said judgment at para 5 reads as here under:- 5. When we look at the functions of the input service distributor and the documents to be issued by him for passing on the credit, it becomes quite clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Swastik Tin Works judgment, cited supra, a clear finding has emerged that Additional Commissioner (Audit) has no jurisdictional assessment and no power to issue show-cause notice to raise demand, that to invoking extended period of limitation. For both the reasons, the appeal would succeed. 6. So far as audit is concerned now coming to the statutory audit procedure, the purpose of audit, as available in the Manual published by the Institute of Chartered Accountants of India in respect of EA audit and CERA audit under Chapter 17 is that the idea behind such conduct of verification is to reasonably ensure that no amount, which under the central excise law is chargeable as duty, escapes taxation and the process of verification is always ..... X X X X Extracts X X X X X X X X Extracts X X X X
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