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TaxTMI 
TaxTMI 
TaxTMI 
2026 (5) TMI 129
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....s admissible to them as the said service (outward transportation) falls within the definition of the Input Service as defined under Rule 2(l) of Cenvat Credit Rules, 2004. The officers however objected to it and therefore, appellant paid back the said Cenvat Credit of Rs.2,45,544/- alongwith interest of Rs.39,329/- on 15.05.2018 and filed declaration for settling the issue under the provisions of Section 11A(2B) of the Central Excise Act, 1944. Subsequent to decision of Hon'ble Supreme Court in the case of M/s.Roofit Industries, M/s. Emco Limited, CBIC issued a Circular No.1065/4/2018-CX dated 08.06.2018 which allowed Cenvat Credit of service tax paid on outward transportation incurred upto the buyer's premises provided contract for sale is on FOR basis. The appellant therefore, considered themselves eligible to above Cenvat Credit and since, they had reversed the same, they filed the refund application with the Jurisdictional authorities. 2. The appellant has taken following grounds in their appeal:- * Learned Commissioner (Appeal) has observed that though the appellant is entitled to Cenvat Credit of above service tax but they cannot claim the refund as the issue stan....
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....e. In view of the above, appellant prayed for allowing the appeal and granting them refund. 3. During arguments, learned Advocate highlighted the case laws relied upon by them in their appeal. He also placed reliance on the decision of CESTAT Bangalore in the case of Divi Laboratories Limited Vs. Commissioner C. Ex., Cus & ST, Hyderabad-III reported at 2015 (40) STR 743 (Tri.- Bang.). He pleaded that Cenvat Credit of service tax paid on outward transportation was admissible to them which was wrongly reversed by the appellant due to audit objection as they wanted to close the matter. However, subsequent to issue of CBIC Circular dated 08.06.2018 which validated availment of Cenvat Credit in such situations, reversal was not justified and therefore, they applied for refund of said Cenvat Credit and interest paid by them. The Adjudicating Authority in this case has travelled beyond the scope of show cause notice which he cannot, in view of the following decision:- A) Bhor Industries Ltd Vs. Union of India-2011 (266) ELT 444 which was upheld by Hon'ble Apex Court -2011 (267) ELT A127 (S.C.) (B) Hindustan Polymers Co. Ltd. Vs. Collector Of C.Ex.-1999 (106) EL....
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....'ble Bombay High Court in the case of Clariant (I) Ltd. (cited supra) and the decision of CESTAT Bangalore in the case of NSP Electronics Ltd. (cited supra) relied upon by the appellant. He pleaded that the order of the Commissioner (Appeal) be upheld and the party's appeal be set aside. 5. Heard rival submissions. The appellant has made out a case that the Adjudicating Authority has decided the matter on issues other than what was raised in the show cause notice. Another ground taken is that on merits also, they have strong case as they had reversed Cenvat Credit of service tax paid on outward freight which was otherwise eligible to them in view of CBIC Circular No.1065/4/2018-CX dated 08.06.2018. As Cenvat Credit on outward freight has been held admissible by the Assistant Commissioner, reversal of the same was not at all required and thus, they were entitled to refund of Cenvat Credit wrongly reversed by them along with interest as this credit cannot be allowed in GST regime. 5.1 I find that in Order-in-Original dated 25.11.2020, the Assistant Commissioner has discussed three issues namely; (a) whether freight was included in the price of excisable goods and wheth....
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....T. 513 (S.C.) = [2006] 2006 taxmann.com 1488 (SC), the Supreme Court emphasized upon the necessity of specifying the grounds for taking action against an individual in the show cause notice. The relevant paragraph of the judgment is delineated below : "16. Learned Counsel for the Revenue tried to raise some of the submissions which were not allowed to be raised by the Tribunal before us, as well. We agree with the Tribunal that the Revenue could not be allowed to raise these submissions for the first time in the second appeal before the Tribunal. Neither the adjudicating authority nor the Appellate Authority had denied the facility of the project import to the respondent on any of these grounds. These grounds did not find mention in the show cause notice as well. The Department cannot travel beyond the show cause notice. Even in the grounds of appeals these points have not been taken." 5. In Commissioner of Central Excise, Bhubaneshwar v. Champdany Industries Ltd., reported in (2009) 9 SCC 466 = 2009 (241) E.L.T. 481 (S.C.) = [2010] 3 taxmann.com 321 (SC), the Supreme Court held as follows : "38. Apart from that, the point on Rule 3 which has been argued ....
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....w the authorities to go beyond the show cause notice is that a person must be given a chance to put up his case with regard to the said show cause notice. Relevant paragraphs are extracted below : '9. The principle that emerges from the above judgments is patently clear that a show cause notice is required to provide details of the nature of the offence and the grounds on which the show cause notice has been issued. Furthermore, the order that is subsequently passed, based on the show cause notice, cannot go beyond the said show cause notice and cannot in any manner penalise the noticee on grounds that were not stated in the show cause notice. 10. The rationale for not allowing the respondents from going beyond the realm of the show cause notice is that the petitioner has to be given a chance to put up his case with regard to the said show cause notice. In the event, a particular case is made out in the show cause notice and the order passed subsequently is beyond the said show cause notice, the same would amount to violation of the principles of natural justice, as the petitioner would not have been aware of the new grounds or new factual elements and could never....