2017 (9) TMI 74

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....ni, ld. DR for the Revenue, have been heard. 3. The main pleading of the appellant is that the Show Cause Notice was issued stating that they are not entitled to claim Cenvat credit on construction services during the relevant period; but the Revenue adjudicates the issue denying them the Cenvat credit saying that major part of their claim of Cenvat credit pertains to supply of readymix concrete, which is an activity in the domain of manufacturing and the activity being under the category of manufacturing the same cannot be an input service for claiming Cenvat credit under Cenvat Credit Rules. The appellant pleads that when Show Cause Notice has been issued on entirely different ground, the Cenvat credit cannot be denied on different gro....

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....ly of readymix concrete (amounting to Rs. 27,76,663/-) has been denied on the reasoning that such activity is covered under 'manufacture' and the appellant therefore is not entitled to Cenvat credit on such activity. This reasoning given by the impugned order has not been part of the Show Cause Notice issued to the appellant. If it is so, the denial of Cenvat credit on this reasoning is set aside. The Hon'ble Supreme Court's decision in the case of CCE Vs. Ballarpur Industries Ltd. - 2007 (215) ELT 489 (SC) has held that the Show Cause Notice is the foundation in the matter of levy and recovery of duty, penalty and interest; if there is no invocation of any rule in the Show Cause Notice it would not be open to the adjudicating authority to ....

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.... Toyo Engineering India Limited - (2006) 7 SCC 592, para 16}. 51................. 52................... 59. Revenue also relied on another decision of this Court in Kemrock Industries & Exports Ltd. v. Commissioner of Central Excise, Vadodara - (2007) 9 SCC 52, for the purpose of essentiality test. As noted above, there is no whisper of the essentiality test in the show-cause notice. As no case of essentiality test has been made out in the show-cause notice, the same cannot be argued for the first time before this Court. As such the judgment in Kemrock (supra) on essentiality test is of no avail."  6.3 Consequently, considering the observations of Hon'ble Supreme Court in the decisions (supra), there cannot be any doubt tha....