Commissioner of Central Goods and Service Tax Versus Mangalam Cement Limited
Central Excise
2019 (2) TMI 81 – RAJASTHAN HIGH COURT – 2019 (24) G. S. T. L. 545 (Raj.)
RAJASTHAN HIGH COURT – HC
Dated:- 19-9-2018
D.B. Central Excise Appeal No. 79/2018
Central Excise
Mr. Justice Mohammad Rafiq And Mr. Justice Goverdhan Bardhar
For the Appellant(s) : Mr. Siddharth Ranka.
For the 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 10.10.2017 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 that order dated 28.09.2015 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 06.07.2018 on the following substantial
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se 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 02.11.2012 was issued to the respondentassessee 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 19.09.2013 passed demand order, disallowing claim of CENVAT Credit of Rs. 53,66,338/- on the aforesaid three issues and charged interest and penalty thereon.
The respondent-assessee, being aggrieved by the said order, preferred appeal before the Tribunal, which vide judgment dated 17.11.2014 allowed the appeal and remanded back the matter to the Adjudicating Authority to re-determine the question as to what is the place of removal. In pursuance of remand order
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as there in respect of (a) GTA Services; (b) Auction Services and (c) Rent-a-Cab Services upto the place of removal, the same has already been removed by the Government and therefore, the aforesaid services taken upto the place of removal can only be covered under the definition of 'input service'. The Tribunal has failed to notice this change in the definition while deciding the appeal of the assessee, while judgment has been given in the context of the earlier definition of “input service”.
Reference to definition of “place of removal” in Section 4(3)(c) of the Act of 1944 was also given. Since the present matter was 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 dec
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s assessment year wherein the main demand was set aside, the question of penalty would therefore not arise for consideration.
Learned counsel argued that as per the law that was prevalent at the time when the Tribunal passed the impugned judgment, the respondent-assessee was not required to satisfy the demand and acted throughout under that impression, therefore, there was no question of any penalty to be paid on that.
Mr. Siddharth Ranka, learned counsel for the appellant rejoined and submitted that the penalty is consequential as the issue raised in this matter is squarely covered by the judgment of the Supreme Court. In case the 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 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
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