2010 (2) TMI 133

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....he case are that the appellants filed an application for refund of CENVAT credit under Rule 5 of the Cenvat Credit Rules, 2004 amounting to Rs.4,66,090/-. The appellants were issued a show-cause notice on the following grounds:- (i) Some of the invoices issued by M/s TQ3 Travel Solutions India Pvt. Ltd. do not have service tax registration on it. (ii) The registration number mentioned on the invoices issued by M/s Routes Car Rentals (I) Pvt. Ltd. do not match with the registration number given in the details submitted along with the claim. (iii) As per invoices of M/s Routes Car Rentals (I) Pvt. Ltd., M/s Indiatravel Pvt. Ltd., M/s Parvatham Cabs, the cab services have been used outside Mumbai and the use of these services as input....

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....and original documents were dropped and the inputs service credit on the Rent-a-Cab and Air Travel Service were disallowed and the non-utilization of CENVAT credit and difference in ST-3 and refund claim was not the subject matter of the show-cause notice. He further submits that without alleging in the show-cause notice, the adjudicating authority has no power to decide the issue. To support his contention, he placed reliance on Bhagwati Silk Mills Vs. Commissioner of Central Excise, Surat reported in 2006 (205) ELT 182 (Tri-Mum), wherein it was held that goods cannot be confiscation there being a notice to that effect and adjudicating authority cannot travel beyond the show-cause notice. Further, in the case of Reckitt & Colman of India L....

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....that the refund claim is not filed under Rule 5 of the Cenvat Credit Rules, 2004, hence, the impugned order is sustainable. 5. Heard both sides. 6. On careful examination of the issue involved in this case, I find that the adjudicating authority has gone beyond the scope of show-cause notice, while denying the refund claim on the ground of non-utilization of CENVAT credit and difference in ST-3. The adjudicating authority cannot go beyond the allegation made in the show-cause notice, hence the denial of CENVAT credit not utilized and the difference in ST-3 are not sustainable and the refund is allowed. 7. Furthermore, the lower authorities have never gave the clear finding that why the appellants are not entitled to take the CENVAT....