Commissioner of Central Goods and Service Tax, Udaipur Versus Mangalam Cement Limited
Central Excise
2018 (10) TMI 829 – RAJASTHAN HIGH COURT – 2019 (27) G. S. T. L. 648 (Raj.)
RAJASTHAN HIGH COURT – HC
Dated:- 19-9-2018
D.B. Central Excise Appeal No. 138/2018
Central Excise
MR. MOHAMMAD RAFIQ AND MR. GOVERDHAN BARDHAR JJ.
For Appellant(s): Mr. Siddharth Ranka.
For Respondent(s): Mr. P.K. Kasliwal.
JUDGMENT
(Per Hon'ble Mr. Justice Mohammad Rafiq)
This appeal has been filed by the appellant-Revenue assailing judgment dated 09.11.2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi (for short 'the Tribunal') with the prayer to set aside the aforesaid judgment and order dated 28.11.2016 passed by the Commissioner, Central Excise Commissionerate, Udaipur (for short 'the Adjudicating Authority') be restored.
This appeal was admitted by this Court vide order dated 10.08.2018 on the following substantial question of law
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t these services were not covered under the definition of 'input service' under the provisions of Rule 2(l) of the CENVAT Credit Rules, 2004 (for short 'the Rules of 2004'). Therefore, a show cause notice dated 28.07.2015 was issued to the respondent-assessee proposing recovery of the CENVAT Credit wrongly availed along with interest under Rule 14 of the Rules of 2004 read with Section 11 AA of the Central Excise Act, 1944 (for short 'the Act') and penalty under Rule 15 of the Rules of 2004. The Adjudicating Authority vide order dated 28.11.2016 passed demand order, disallowing claim of CENVAT Credit of Rs. 1,24,75,315/- on the aforesaid issue and charged interest and penalty thereon. The respondent-assessee, being aggrieved by the said order, preferred appeal before the Tribunal, which vide impugned judgment dated 09.11.2017 allowed the appeal and set aside the demand order dated 28.11.2016. Hence, this appeal.
Mr. Siddharth Ranka, learned counsel for the appellant-revenue has submit
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s covered by the aforesaid notification, the Tribunal was wholly unjustified in allowing the appeal filed by the assessee. Learned counsel argued that since the question raised in the present case is squarely covered by the judgment of the Supreme Court in the case of Commissioner of Central Excise Service Tax Vs. Ultra Tech Cement Ltd. (Civil Appeal No. 11261 of 2016 decided on 01.02.2018), not only demand order is liable to be revived but penalty has to be imposed on the assessee and awarded to the Revenue.
Mr. P. K. Kasliwal, learned counsel for the respondent-assessee submitted that similar question in respect to previous assessment years has been decided in favour of the assessee and against the Revenue by this Court. The Revenue preferred SLP against the said decision of this Court. Therefore, hearing of the present matter may be deferred till the final decision of the Supreme Court, as according to learned counsel for the respondent, the Supreme Court in the case of Commissione
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judgment of the Tribunal is set aside and demand is revived, the penalty imposed by the Adjudicating Authority is also liable to be restored. Learned counsel submitted that the submission of the respondent that the Supreme Court in Ultra Tech Cement Ltd. (supra) has not considered this aspect and the matter requires reconsideration, has to be rejected in view of the fact that the assessee in that case filed review petition, which was also dismissed by the Supreme Court vide order dated 24.04.2018.
On hearing learned counsel for the parties and perusing the material on record, we find that in view of the amended definition of “input service” w.e.f. 01.03.2008 as also in the light of judgment of the Supreme Court in Ultra Tech Cement Ltd. (supra), judgment of the Tribunal cannot be sustained in law and the demand is liable to be revived. However, the present matter deserves to be remanded to the Tribunal to consider the question of penalty.
In view of above discussion, present appeal
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