2018 (6) TMI 643

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....rvice providers are not available in the invoices; iii) Cenvat credit availed on "Outdoor Catering Service" was ineligible. 2. The Revenue was of the view that the appellant did not produce the original invoices for verification, Cenvat credit was therefore availed on ineligible documents. During the personal hearing before the adjudicating authority, the appellant could produce invoices to a larger extent but however in respect of some of the invoices it was alleged that those invoices did not carry the service tax registration number of the service provider. Thus, demand to an extent of Rs. 15,32,066/- was confirmed on the ground that the credit was claimed on the basis of photocopy of the invoices, the rest of the demand of Rs. 5,26,8....

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....y the Ld. Counsel for the appellant that he will furnish all the original invoices to the satisfaction of the Ld. AA, in the interest of justice, I am of the view that the matter on this issue is required to be re-adjudicated by the adjudicating authority and hence, the appeal is remanded to the file of the adjudicating authority for verification of balance invoices, to his satisfaction. The appellant is also directed to furnish all the remaining invoices in original within reasonable time frame to be granted by the adjudicating authority who shall pass order in accordance with law and with these directions, this issue is disposed of. 4.3 The second issue agitated by the appellant is that the Cenvat credit in some cases have been denied on....

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.... that unless the foundation of the case, is made out in the show cause notice, Revenue cannot in Court argue a case not made out in its show cause notice. {See : Commissioner of Customs, Mumbai v. Toyo Engineering India Limited - (2006) 7 SCC 592, para 16}. 51. Similar view was expressed by this Court in the case of Commissioner of Central Excise, Nagpur v. Ballarpur Industries Ltd. - (2007) 8 SCC 89. In paragraph 27 of the said report, learned Judges made it clear that if there is no invocation of the concerned rules in the show cause notice, it would not be open to the Commissioner to invoke the said Rule. 52. Learned counsel for the Revenue also relied on some judgments. 53. It relied on the case of Oswal Agro Mills Ltd. and Ors. v....

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....ings. Therefore, the ratio in Novopan (supra) has no relevance in the facts of the present case. 57. Learned counsel also relied on the decision of this Court in Hindustan Poles Corporation v. Commissioner of Central Excise, Calcutta - (2006) 4 SCC 85. In fact the judgment in that case does not at all advance the case of the appellant-Revenue. In paragraph 39 of the judgment it has been held that the residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries and unless the Department can establish that the goods in question can, by no conceivable process of reasoning, be brought under any of the tariff items, resort cannot be had to the residuary item. 58. Following the said pri....