TaxTMI 
TaxTMI 
2021 (2) TMI 1104
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....in the Show Cause Notice or in the adjudication order? 2.Whether in the facts and circumstances of the case, the Tribunal was right in law in directing the adjudicating authority to examine the eligibility of credit in the light of Section 37(2) of the Central Excise Act when no such contention was raised by the Revenue in the Show Cause Notice? 3.Whether in the facts and circumstances of the case, the Tribunal was right in holding that the adjudicating authority should examine whether the impugned services can be considered as eligible input services under the Cenvat Credit Rules when the only issue in appeal was whether a debit note is a valid document or not for availing cenvat credit? And 4.Whether in the facts and circumstances of the case, the Tribunal was correct in holding even after accepting the submissions made by the Appellant with reference to the allegations in the Show Cause Notice that they can remand the matter for denovo adjudication with a fresh proposal which was not the subject matter of the appeal?" 3.We have elaborately heard Mr.S.Manoj, learned counsel appearing for the appellant/assessee and Mr.A.P.Srinivas, learned Senior Standing Counsel for the re....
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.... above allegation, the appellant was directed to show cause as to why the service tax credit availed and utilized in contravention of Rule 9(1) of the CCR, 2004 should not be recovered from them under Rule 14 of the CCR, 2004 read with Section 11A of the Act; why interest should not be demanded and why penalty should not be imposed under Rule 15(1) of the CCR, 2004. 6.The appellant submitted their common reply dated 05.03.2007 and raised a preliminary objection with regard to the limitation for issuance of the show cause notices by invoking the power under Section 11A of the Act. In this regard, the learned counsel for the appellant relied as many as seven decisions of the Hon'ble Supreme Court as well as the Tribunal and more particularly, the decision of the Hon'ble Supreme Court in CCE vs. HMM Ltd., [1995 (76) E.L.T. 497 (SC)] for the proposition that the extended period of limitation cannot be invoked, unless the show cause notice puts the assessee to notice specifically of which, various commissions or omissions stated in the proviso to the Section had been committed. Further, on the allegation that debit notes are not eligible documents, the assessee gave an elaborat....
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....Authority for fresh consideration, but is aggrieved by the later part of the order passed by the Tribunal more particularly, from paragraphs 5 to 9 and portion of paragraph 10 of the impugned order. In these paragraphs, the Tribunal appears to have suo motu taken up for consideration as to whether credit of service tax paid or payable on taxable service is allowable. The Tribunal suo motu proceeded to refer to Section 37(2), Section 11AB of the Act and made certain observations, which are in the nature of conclusive observations. The learned counsel for the assessee had argued that the assessee had been put on notice only regarding the issue whether the debit note is an eligible document or not and not on the question whether the impugned taxable service is an eligible input service or an ineligible input service. After noting this submission, the Tribunal while remanding the matter to the Original Authority following the decision in Pharmalab Process Equipments Pvt., Ltd. (supra), issued one more direction to the Original Authority to issue a fresh show cause notice as to whether the impugned services are eligible input services or not. The assessee is aggrieved over such directio....
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.... any cross appeal/objection. Therefore, the assessee cannot be worse off in its own appeal before the Tribunal. Further, the Tribunal has not recorded as to who had advanced such submission. In the absence of any such observation, we are compelled to observe that it is suo motu exercise by the Tribunal, which is uncalled for and without jurisdiction. We say so because, the allegation in the show cause notice, which gives the cause of action for the entire matter, is that the assessee availed service tax input credit based on ineligible documents. Therefore, the Department can never proceed beyond such allegation and if done so, it would be wholly without jurisdiction. In other words, the Tribunal cannot sustain the case of the Revenue against an assessee on a ground not raised by the Revenue either in the show cause notice or in the order in original passed by it. To support such conclusion, we place reliance on the decision of the Hon'ble Supreme Court in SACI Allied Products Ltd., vs. Commissioner of C. Ex., Meerut [2005 (183) ELT 225 (SC)]. The relevant paragraphs of the decision read as follows:- "16.The appellate Tribunal, by the impugned order, has upheld the order of t....