M\/s. Kalyan Confectionery Pvt. Ltd. Versus Commissioner of CGST & Central Excise, Kolkata North
Service Tax
2018 (7) TMI 261 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 2-4-2018
Appeal No.ST\/75458\/2018 – FO\/76183\/2018
Service Tax
Shri P.K. Choudhary, Member (Judicial)
\nShri K.K. Banerjee, Advocate for the for the Appellant (s)
\nShri S.S. Chattopadhyay, Suptd.(AR) Respondent (s)
\nORDER
\nPer Shri P.K. Choudhary
\n1. Heard both sides and perused the appeal records.
\n2. Ld. Commissioner (Appeals) vide the impugned order has allowed the Revenue's appeal and confirmed the demand of service tax of Rs. 6,53,320\/- along with equal amount of penalty under Section 78 of the Finance Act, 1994. The relevant paragraphs of the impugned order are reproduced for better understanding of the case.
\n“6.1. I have carefully gone through the case records, I find from the Annexure-A to impugned show cause notice dated that at the bottom of the said annexure it is specifically ment<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n nter alia, = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n he time of personal hearing before me, therefore it can be infer that appellant has nothing to say on their party and accepted the contention\/grounds of appeal of the department. I also find that without any counter argument there is no reason to uphold the order where there is no proper findings towards revision of the tax demand raised by the department. Therefore, I find that the entire demand of tax along with interest and penalty is required to be confirmed and I fully accept the grounds of appeal filed by the department. Hence, I modify the order passed by the adjudicating authority in following terms.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. Kalyan Confectionery Pvt. Ltd. Versus Commissioner of CGST & Central Excise, Kolkata NorthService Tax2018 (7) TMI 261 – CESTAT KOLKATA – TMICESTAT KOLKATA – ATDated:- 2-4-2018Appeal No.ST\/75458\/2018 – FO\/76183\/2018Service TaxShri P.K. Choudhary, Member (Judicial) Shri K.K. Banerjee, Advocate for the for the Appellant (s) Shri S.S. Chattopadhyay, Suptd.(AR) Respondent (s) ORDER Per Shri P.K. … Continue reading “M\/s. Kalyan Confectionery Pvt. Ltd. Versus Commissioner of CGST & Central Excise, Kolkata North”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-12486","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12486","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12486"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12486\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12486"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12486"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12486"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n“Apart from that, the point on Rule 3 which has been argued by the learned counsel for the Revenue was not part of its case in the show cause notice. It is well settled that unless the foundation of the case, is made out in the show cause notice, Revenue cannot in Court argue a case not made out in its show cause notice. {See: Commissioner of Customs, Mumbai v. Toyo Engineering India Ltd. – (2006) 7 SCC 592, para 16}”
\nThe aforesaid decision by the Hon'ble Apex Court makes it clear that under no circumstances, no decision should go beyond the scope of notice. Similar approach was obtained again Hon'ble Apex Court in the case of CCE vs. Gas Authority of India Ltd. [2008 (232) E.L.T. 7 (S.C.)].
\n6.2. I further find from the Annexure-A submitted by the appellant written as Summary which is a part of the findings of the OIO dated 28.06.2016, where in it was stated by the appellant that Rs. 22,360\/- is the differential tax due on the part of the appellant and Rs. 92,501\/- is <\/p>\n
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\n3. Ld. Advocate appearing on behalf of the appellant submits that the demand of Rs. 6,53,320\/- as raised in the show cause notice had already been paid by the appellants in pursuance to the queries made by the audit during August, 2014. Ld. Advocate vehemently argued that the amount demanded is without considering the exemption available to the consignments below Rs. 750\/- each <\/p>\n
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