2012 (7) TMI 740

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....er and tower parts and inter alia were availing credit of service tax paid on input services. During audit, it was pointed out to the assessee that credit is not available in respect of service tax paid on activities like "vehicle insurance, AMC on Xerox machines, housekeeping by management". The assessee paid the entire amount of Rs.1,64,101/- on 16/04/2008. However, a show-cause notice dt. 23/12/2008 was issued directing the assessee to show cause as to why i. an amount of Rs.1,64,101/- being the irregular service tax credit availed by them, should not be recovered from them for extended period in terms of Rule 14 of the CENVAT Credit Rules, 2004 read with proviso to Section 73 of the Finance Act, 1994; ii. Interest at the applicabl....

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....ed proposing confirmation service tax demand and imposition of penalties, they have contested the same. Against the order passed by the original authority, they filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) has rightly set aside the order of the original authority. He further submitted that there has been nexus between the services and the manufacturing activities. 6. I have carefully considered the submission from both sides and perused the records. Audit pointed out to the assessee that credit taken on certain services was not admissible and the respondent-assessee paid the amount on 16/04/2008. Even if the assessee-respondent felt that the matter was closed, the Department has not treated the matter as ....

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....t giving an opportunity to the original authority especially in the light of Rule 5 of Central Excise (Appeals) Rules, 2001 which reads as under:- RULE 5. Production of additional evidence before Commissioner (Appeals). - (1) The appellant shall not be entitled to produce before the Commissioner (Appeals) any evidence, whether oral or documentary, other than the evidence produced by him during the course of the proceedings before the adjudicating authority except in the following Circumstances, namely:- (a) where the adjudicating authority has refused to admit evidence which ought to have been admitted; or (b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by ad....