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TMI Blog2024 (5) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... mpted service in the form of sale of units after the issuance of Completion Certificate. He has also dealt with the issue as to whether the Appellant can take the benefit of Cenvat Credit as well as abatement when they are following the procedure given under Notification No. 1/2006-St as amended from time to time. As to whether the Commissioner (Appeals) has traversed beyond the scope of SCN can be seen only after going through the Department s Grounds before him are considered, which presently is not available to the Bench. Since the Show Cause Notice addressed several issues about the credit taken, return shown in the ST-3 etc., it would be important to get these facts verified. In the absence of all the documents being placed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by reversing Rs. 7,13,932/- under the Cenvat Credit Account and balance Rs. 14,91,849/- by way of GAR-7 Challan No. 252 and 245 dated 01/07/2013. Thereafter, on their own, they have calculated the reversal to be done. As per their calculation, they came to the conclusion that they were required to reverse only Rs. 2,19,499/- and not Rs. 22,05,781/- as pointed out by the audit team. Thereafter, they have filed the refund claim for Rs. 14,91,849/- in respect of amount paid by them by way of GAR-7 Challans. 2. A Show Cause Notice was issued on 11/05/2016 on various grounds. The Appellant filed their detailed Reply vide their Letter dated 8th July 2016. In this Reply, they have stated that they have been discharging the Service Tax during the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere providing exempted services, since they were not required to pay the Service Tax on the units wherein Completion Certificate has been issued by the authorities. At that particular point of time without going into the details, he Appellants reversed Rs. 7,13,932/- in their Cenvat Account and paid Rs. 14,91,849/- vide their Challan dated 01/07/2013. Thus the entire amount of Rs. 22,05,781/- as pointed out by the Audit was fully paid. However, subsequently they calculated the actual reversal to be done. As per their calculation, the actual amount to be reversed was only Rs. 2,19,499/-. Since the excess payment made under Cenvat Credit cannot be claimed as refund, the Appellant has correctly sought refund of only cash payment of Rs. 14,91,8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the CC is issued. In case of such units, the Appellant is not eligible to take the Cenvat Credit since such sales are exempted from payment of Service Tax. This was very much part of the Show Cause Notice. (ii) So far as the second point considered by the Commissioner (Appeals) is concerned, he submits that the Appellant himself has admitted in their Reply to Show Cause Notice that they have been paying the Service Tax as per the Notification No. 01/2006 dated 01/03/2006 as amended by 26/2012 dated 20/06/2012. Therefore, the Commissioner (Appeals) was correct in checking as to whether Appellant had taken the double benefit one by way of availing the Cenvat Credit and second by availing the abatement given in the Notification. Therefore, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit availed during the said period is shown as Rs. 36,80,579/- only[enclosed as Annexure-B] 5. There is a huge difference between the total amount of CENVAT credit availed on input services and utilized for payment of service tax as per the ledger account of Cenvat Credit so submitted, and the ST-3 returns filed by them during the period 2012-13. 8. The Assessee has filed their Reply on 08/07/2016 wherein at Para 2.5, they have given the details of the Audit taken up, the issue raised by them and the details of payment made by the Appellant. They have addressed the issue raised in the Show Cause Notice under Para No. 3.1 to 3.2.2. 9. On finding that this Audit Report is important for the present case and has not been enclosed by the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing through the Table given at Page 3 of the Show Cause Notice, it is seen that the Appellant has taken the Cenvat Credit for input services in April 2012 amounting to Rs. 3,34,053/- which could not have been taken in terms of Notification No. 01/2006-ST, since the Appellant has been claiming that they were following this Notification. 12. Since the Show Cause Notice addressed several issues about the credit taken, return shown in the ST-3 etc., it would be important to get these facts verified. In the absence of all the documents being placed before the Bench, it would not be fair to come to conclusion at this juncture. Accordingly, in the interest of justice, I remand the matter to the Adjudicating Authority to get all the documentary evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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