Custom, Excise & Service Tax Tribunal
M/S. United Telecom Ltd vs Cce, Bangalore on 13 May, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench SMB
Court I
Date of Hearing: 13/05/2010
Date of decision:13/05/2010
Appeal No.E/629/10; Appn. No.E/ST/368/10
(Arising out of Order-in-Appeal No.65 & 66/2010-CE dt. 15/2/2010 passed by CCE(Appeals), Bangalore)
For approval and signature:
Honble Mr. M.V.Ravindran, Member(Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. United Telecom Ltd.
..Appellant(s)
Vs.
CCE, Bangalore
Respondent(s)
Appearance Mr. B.N.Gururaj, Advocate for the appellant.
Ms. Sudha Koka, SDR for the Revenue.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) FINAL ORDER No._______________________2010 Per M.V.Ravindran This stay petition is filed by the applicant for the waiver of the pre-deposit of the following amounts:-
a. Service tax Rs.1,66,052/- b. Interest.
c. Penalty Rs. 1,66,052/- u/s 11AC.
2. After hearing both sides for some time on the stay petition, I find that the issue could be decided at this juncture as it lies in a narrow compass, hence, after dispensing with the condition of pre-deposit of the amounts adjudged by the adjudicating authority and upheld by the ld. Commissioner(Appeals), I take up the appeal itself for disposal.
3. Heard both sides and perused records.
4. The issue involved in this case is denial of Cenvat Credit to the appellant on the ground that the service tax paid by the share broker / sub-broker cannot be availed as cenvat credit as it does not play any role in the manufacture of final products of the appellant. Ld. Counsel draws my attention to the impugned order wherein the Commissioner(Appeals), in para -7 has held that Prima-facie there is no enough evidence that the appellants had received the services from such sub-brokers and submits that it was never the case nor the adjudicating authority has passed the order on these facts. He would draw my attention to the show cause notice and the Order-in-Original. It is also his submission that the observations made by the Commissioner(Appeals) in para-9 as regards the liability to availing the cenvat credit of the services rendered by stock broker, it is his submission that the ld. Commissioner(Appeals) has held that only person can avail the cenvat credit and not the corporate body. It is also his submission that the finding by the ld. Commissioner(Appeals) as regards the memorandum of association of the company are irrelevant as these were never part of the show cause notice or an allegation of the show cause notice.
5. Ld. SDR reiterates the findings of the ld. Commissioner(Appeals).
6. On careful consideration of the submissions made by both sides and perusal of the records, I find that the ld. Commissioner(Appeals) has decided the issue going beyond the allegations made in the show cause notice and also recording findings which were never a part of the original proceedings . It is a settled law that appellate authority cannot go beyond the allegations made in the show cause notice and the findings in the Order-in-Original, and in view of this, the impugned order is set aside and without expressing any opinion on the merits of the case, the matter is remanded back to the ld. Commissioner(Appeals) to consider the issue afresh, record his findings within the parameters of the allegations in the show cause notice and the grounds of appeal raised by the appellant against the Order-in-Original. Appeal allowed by way of remand. Stay petition also gets disposed off.
(Pronounced and dictated in open court) (M.V.Ravindran) Member (Judicial) Nr ??
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