Commissioner of Central Excise and Service Tax vs. Hazira Port Pvt Ltd - (Customs, Excise and Service Tax Appellate Tribunal) (23 Sep 2022)

Any issue which is not flowing from the show cause notice being beyond the show cause notice, need not be addressed by the authority

MANU/CS/0246/2022

Service Tax

The brief facts of the case are that, the Appellant was issued show cause notice proposing demand of Cenvat credit of service tax paid under Section 66A for the services of Maintenance or Repairs service, Consulting Engineer Service, Management Consultant Service, Erection & Commissioning service and Information Technology services received from a foreign service provider on reverse charge mechanism. Whereas, as per Rule 3 of Cenvat Credit Rules, 2004, Cenvat credit is allowable only in respect of service tax liable under Section 66 of Finance Act, 1994.

The Adjudicating Authority dropped the demand on the ground that, Section 66A of the Finance Act, 1994 has been added in the list of eligible credit in Rule 3 with effect from 18th April, 2006 by retrospective amendment in the Bill and the same was also clarified by Board Circular F.No. 345/1/2008-TRU dated 27th June, 2008. The Revenue filed the present appeal on the ground that the Adjudicating Authority while dropping the demand should have examined that whether the services in question were admissible input service in terms of Rule 2(l) of Cenvat Credit Rules, 2004, therefore the order is not legal and proper.

Admittedly, the show cause notice has alleged that Appellant is not entitled for the Cenvat credit in respect of services namely Maintenance or Repairs service, Consulting Engineer Service, Management Consultant Service, Erection & Commissioning service and Information Technology services on the ground that service tax paid under reverse charge mechanism under Section 66A of the Finance Act, 1994 whereas Rule 3 prescribes the Cenvat credit in respect of service tax leviable under Section 66. This issue was correctly decided by the Adjudicating Authority as Section 66A was added retrospectively in Rule 3 for allowing Cenvat credit.

As regards the issue that whether the services in question are admissible input service in terms of Rule 2(l), this issue was never raised in the show cause notice. Therefore, it cannot be expected from the Adjudicating Authority to pass order on the issue which is beyond the scope of show cause notice. It is settled law that any issue which is not flowing from the show cause notice being beyond the show cause notice, need not be addressed by the authority. Therefore, there is no error on the part of the Adjudicating Authority for not considering the issue of admissible input service in terms of Rule 2(l). The Adjudicating Authority has correctly passed order addressing the only issue which was raised in the show cause notice. Moreover, all the services on which the assessee has availed Cenvat credit are prima-facie appears to be input service. There is no infirmity in the impugned order. Accordingly, the same is upheld. Revenue's appeal is dismissed.

Tags : DEMAND DELETION LEGALITY