TaxTMI 
TaxTMI 
2018 (7) TMI 183
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....ls; service Tax and the maintenance on computers and peripherals has been imposed from 09.07.2004, when the exemption, from Service Tax for maintenance of computers and peripherals in terms of Notification No. 20/2003 dated 21.08.2003, was withdrawn from 09.07.2004. 2. Following an adjudication order no. 05/2006 dated 23.01.2006, passed by Commissioner of Central Excise & Service Tax, the appellants have paid Service Tax of Rs. 394,02,174 (Rs.1,52,39, 420 through cash and Rs. 241,62,754 through CENVAT credit) along with interest. The appellants claimed that they are eligible for the benefit of Notification No. 12/03 and filed an application for refund of service Tax of Rs. 1, 28, and 99,099 on the ground that they have paid Service Tax i....
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....peal filed by the appellants, the Commissioner (Appeals) vide order no. 150/2007 dated 22.12.2007 has upheld the Order-in-Original of the Assistant Commissioner rejecting the refund claim while holding that the appellants have only made an attempt to prove that there is excess payment of Service Tax by adjusting the CENVAT which was not available to them during the relevant months towards payment by Service Tax already paid vide TR 6 Challan in contravention of proviso 1 of sub rule 4 of rule 3 of CENVAT Credit Rules, 2004 as discussed in Order-in-Original No. 5/2007 Service Tax dated 25.01.2007; Commissioner appeals held that this is yet another ground for determining the eligibility to CENVAT credit; hence, the present appeal. 5. The a....
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....oner (A) cannot setup a new ground at this stage to reject the refund claim; it is a settled law that adjudication order cannot go beyond the Show-cause notice; they placed reliance on the ratio of the following laws: (i) Mercantile India Vs CC, Chennai; 2007 (214) ELT 540 (Tri. Chennai) (ii) Andhra Sugars Ltd; vs CCE; 2007 (207) ELT 534. (iii) Vikram Jain vs Commissioner of Customs, Bangalore 2006 (205) ELT 375 (Tri. Bang) (iv) Bharat Aluminum Ltd. vs. CCE; 2006 (195) ELT 275. (v) Birla Copper Ltd. vs. CCE; 2005 (191) ELT 239. (vi) Kores (I) Ltd. vs. CCE; 2004 (169) ELT 117. (vii) Baboobhai Patel & Co. vs. Collector of Customs; 1993 (68) ELT 734 (Bom). 6. The appellants cont....
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....ce Tax on gross value indicated in the invoice; they have correctly availed the CENVAT under Rule 3 of the CENVAT Credit Rules, 2004; they have maintained records in respect of credits taken on the inputs and input services which are related to maintenance or repair services; Commissioner (A) while stating (paragraph 8 of the order) that the appellants have not availed the credit in the months of July and August, 2004, has arrived at a finding that the appeals had used CENVAT for the payment of differential duty for the month of July and August, 2004; Commissioner (A) contended that the appellants are entitled to take credit only from 25.01.2005, the date on which the officers visited the premises or from 15.02.2005, the date from which the....
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.... 8. The appellants contended that the Commissioner (A) cannot reject the appeal on a completely new ground which was not an issue in the Order-in-Original and Show Cause Notice. They relied upon the following cases: (i) Curekraft Chemicals Pvt. Ltd. Vs. CCE; Chennai. 2009 (247) ELT 506 (Tri. Chennai) (ii) Nilos India Pvt. Ltd. Vs. CC; Chennai. 2009 (241) ELT 270 (Tri Chennai). (iii) Excel Tyre & Rubber Products Vs. CCE; Mang. 2016 (8) TMI 1070-CESTAT BANGALORE. (iv) Open Text Technologies India Pvt. Ltd. Vs. CC, CE & ST. 2017 (7) TMI 722-CESTAT HYDERABAD. 9. The appellants also contended that the eligibility of credit cannot be questioned in a refund proceeding. They relied upon the following cases: ....