9911796707
TMI Blog2025 (2) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of CENVAT Credit on the ground that the disputed services were not confirming to the definition of 'input service'. Such ground was considered for the first time by the Department in third adjudication order (impugned herein). Since the showcause notice is a primary document based on which the entire proceedings were initiated against the appellants for confirmation of the CENVAT demand, no new ground can be taken subsequently at the time of adjudication stage, inasmuch as it is only the allegation levelled in the show-cause notice, which can be addressed to or acted upon by the adjudicating authority, while passing the adjudication order. The issue with regard to taking of new ground/plea in the adjudication order, which was not bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n providing various taxable services, defined under the Finance Act, 1994. During the course of scrutiny of records under the EA-2000, the Service Tax Department had observed that in the ST-3 return filed for the period October, 2009 to March, 2010, the appellants had showed the closing balance of CENVAT Credit as Rs.4,55,32,173/- in their books of account, maintained as on 31.03.2010. However, in the ST-3 return filed for the period April, 2010 to September, 2010, they had reflected the figures of opening balance of Rs.26,83,37,826/- as on 01.04.2010. Since there were mis-match between the figures reflected in the ST-3 returns filed for both the periods, the Department had alleged that the appellants had availed an excess CENVAT Credit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011/2019 dated 07.01.2019, again by way of remand to the original authority for proper quantification of the CENVAT Credit figures reflected in the ST-3 returns for both the periods vis-à-vis those captured in the Books of Accounts. In terms of the order dated 07.01.2019 passed by the Tribunal, the learned Commissioner vide the Order-in-Original No. 69/RB/Commr/Belapur/2022-23 dated 31.07.2023 (herein after referred to as 'the impugned order') has completed the de novo adjudication proceedings. In the said order, the learned Commissioner of Service Tax has disallowed CENVAT Credit amounting to Rs.1,70,46,954/- and allowed balance amount of the Cenvat credit of Rs.20,57,58,699/-; he has further ordered for payment of interest on the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Supreme Court in the case of CCE, Nagpur Vs. Ballarpur Industries Ltd. - 2007 (215) ELT 489 (S.C.), Commissioner of Customs, Mumbai Vs. Toyo Engineering India Ltd. - 2006 (201) ELT 513 (S.C.) & Caprihans India Ltd. Vs. Commissioner of Central Excise - 2015 (325) ELT 632 (S.C.). 3. On the other hand, learned Authorized Representative appearing for the Revenue reiterated the findings recorded in the impugned order and further submitted that since the demand confirmed in the impugned order dated 31.07.2013 was proposed for recovery in the show-cause notice dated 16.07.2013, it cannot be said that the adjudicating authority for the first time has taken the grounds, which were not canvassed in the showcause notice issued by the Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el Agent services etc., are not proper and justified, inasmuch as those disputed services were not confirming to the definition of 'input service' provided under Rule 2(l) of the CENVAT Credit Rules, 2004. 5.1 On examination of the case records, more particularly the showcause notice dated 16.07.2013, we find that the allegations levelled therein against the appellants was in context with mis-match of figures in ST-3 returns prepared for the period between October, 2009 to March, 2010 and April, 2010 to September, 2010. The said show-cause notice had not proposed for disallowance of CENVAT Credit on the ground that the disputed services were not confirming to the definition of 'input service'. We find that such ground was considered for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice is the foundation in the matter of levy and recovery of duty, penalty and interest. If there is no invocation of Rule 7 of the Valuation Rules 1975 in the show cause notice, it would not be open to the Commissioner to invoke the said rule." 5.2 Further, we also find that the Hon'ble Supreme Court in the case of Toyo Engineering (supra) have also dealt with the identical issue, holding that the grounds did not find mention in the show-cause notice, then the Department cannot travel beyond such notice and the demand confirmed entirely on new grounds is liable to be set aside. Paragraph 16 in the said judgment, which is relevant for consideration of the present dispute, is extracted as under: - "16. Learned counsel for the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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