TaxTMI 
TaxTMI 
2022 (3) TMI 802
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....593384 alongwith interest and penalty has been confirmed. 2. The facts in brief for the purpose are that the appellant is engaged in providing club membership and restaurant services and is registered under service tax. During the course of the audit department observed that the appellant was providing taxable as well as the exempted service but was not maintaining a separate account nor was paying the amount as determined under sub-rule 3 A of Rule 6 of Cenvat Credit Rules, 2004. During the period of October, 2008 to April, 2011 service Tax of Rs. 15,59,873/- but was alleged as short. The abetment as taken by the appellant was also alleged to be in contravention of Notification No.1/2006-ST dated 1.3.2006 as amended vide Notification No....
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.... under Notification was held justified by the authorities while dropping the entire demand of Service Tax. Confirming the amount of Cenvat Credit is therefore against the legal provisions, the factual basis and even contrary to the findings of adjudicating authority itself. The order under challenge is accordingly, prayed to be set aside. Appeal is prayed to be allowed. 5. Per contra, ld. DR has laid emphasis upon the findings in para 5 of the order under challenge. It is submitted that irrespective the Cenvat Credit has been reversed by the appellant but the said reversal was only after it was pointed out by the Audit Team of the Department. Hence there is no infirmity while confirming the demand of said Cenvat Credit and imposition of ....
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....e Cenvat Credit Rules, 2004." 8. The bare perusal makes it clear that the demand confirmed is out of the scope of the SCN. Law is settled that the SCN is the basis of the litigation arising with respect to the proposal contained therein and the adjudicating authorities have to remain within the four bounds of the said SCN. 9. Further the Adjudicating Authority in para 4.7 has held as follows:- "I find that the quantum of Cenvat Credit availed in the case is Rs. 4,42,251/- upto March, 2012 and Rs. 1,51,133/- from April to June, 2012 and the entire Cenvat Credit stands deposited alongwith interest leviable thereon and the same has been verified by the jurisdictional Service Tax Division." 10. Commissioner Appeals also has he....
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....the appellant failed to comply with any options stipulated in Rule 6 of the CCR, 2004 and hence the Cenvat Credit availed by them is not admissible to them. 6.2 Regarding the issue of imposing penalty under Rule 15(2) of the CCR, 2004 read with Section 78 of the Finance Act, 1994, I find that the appellant were very much aware of the facts that they are providing taxable and exempted services and were required to follow the procedure as laid down under Rule 6 of the CCR, 2004. It is also observed that they not only availed the Cenvat credit on common input services but also utilized the same towards their service tax liability. The Appellant never disclosed these facts to the department and as such suppressed the material facts fro....