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TMI Blog2022 (12) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,083; the latter two, totaling Rs.1,28,38,643, under authority of rule 14 of CENVAT Credit Rules, 2004 for being credit held as ineligible on two separate counts even as availment of depreciation under Income Tax Act, 1961 was assailed as breach in common while the first arose from failure to discharge tax liability on Rs.6,95,97,698 earned for rendering of taxable service for the period from 1st April 2009 to 30th September 2009 for which section 73 of Finance Act, 1994 has been taken recourse to. 2. The appellant is a provider of 'mining services' that was legislated as liable to tax with effect from 1st June 2007 by incorporation of '(zzzy) to any person, by any other person in relation to mining of mineral, oil or gas; in section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken for address at Nagpur. 4. Though it is on record that the appellant herein had furnished written reply to notice, denial of opportunity to be heard in person, owing to casual approach to that facet of adjudication, has been raised in the grounds of appeal. We do have reason to believe that the outcome of the process has been impacted by impropriety in fixing of, as well as in communicating, the dates of hearing. 5. According to Learned Counsel for appellant, the Tribunal has, in Excel Consultancy v. Commissioner of Central Excise, Bhopal [2010 (19) STR 665 (Tri-Del)], held that '6. The dispute is limited to five bills for a total amount of service charges of Rs. 1,04,153/- involving service tax of Rs. 11,358/-. From the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are directed to fully cooperate with the original authority and furnish to him all the related documents to enable him to compute the tax liability in terms of the principles laid down by us above. The determination of penalty and applicability of extended period of time shall be determined afresh by the original authority after quantifying the tax amounts and after adjusting the tax amounts already paid.' in Turret Industrial Security Pvt Ltd v. Commissioner of Central Excise & Customs, Jamshedpur [2008 (9) STR 564 (Tri-Kolkata)] which suffice to establish that the computation of undischarged liability in the impugned order is erroneous. In this context, he also highlighted the observations of the Tribunal in Evergreen Supplies v. Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has applied the relevant statutory provisions correctly and that the decisions of the Tribunal in Securipax India Pvt Ltd v. Commissioner of Central Excise, NOIDA [2004 (175) ELT 212 (Tri- Del)], Simplex Mills C Ltd v. Commissioner of Central Excise, Ahmedabad [1998 (102) ELT 201 (Tribunal)] and of the Larger Bench in Spenta International ltd v. Commissioner of Central Excise, Thane [2007 (216) ELT 133 (Tri-LB)] have ruled on ineligibility of credit in such circumstances. He contends that the decision of the Hon'ble High Court of Karnataka in Commissioner of Central Excise & Service Tax v. Suprajit Engineering Ltd [2010 (253) ELT 69 (Kar)] is abundantly clear on the ineligibility for credit while having availed depreciation for the purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has since been revised and appropriate changes made in returns under Income Tax Act, 1961 should have been considered in the light of judicial decision without exceeding the jurisdictional competence of the adjudicating authority for insisting upon acceptance of the same by authorities empowered under that statute. 10. The adjudicating authority is required to consider the evidence furnished by the appellant that duty liability having been discharged on 'tippers' sourced by them, as now placed on record, before concluding that the credit availed therein is ineligible. 11. The decisions cited on behalf of the appellant make it clear that registration is not relevant in the absence of evidence of non-utilization of the capital goods in rend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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