2019 (2) TMI 81 – RAJASTHAN HIGH COURT – TMI – CENVAT Credit – input services – Outward Goods Transportation Service (from factory to customers, from railway siding to godown and from godown to customers) – October, 2011 to March, 2012 – place of removal – Held 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. [2018 (2) TMI 117 – SUPREME COURT OF INDIA], 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.
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The matter is remanded back to the Tribunal for consideration of the question of penalty to decide the same after hearing both the parties in accordance with law – Petition allowed by way of remand. – D.B. Central Excise Appeal No. 79/2018 Dated:- 19-9-2018 – Mr. Justice Mohammad Rafiq And Mr. Justice Goverdhan Bardhar For the A
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ether the assessee had availed the Cenvat Credit correctly or not? The respondent-assessee is manufacturer of cement classifiable under Chapter 25 of the Central Excise Tariff Act, 1985. Upon perusal of the assessee s record, it was noticed that for the period from October, 2011 to March, 2012, the respondentassessee availed CENVAT Credit of service tax paid by it towards (a) Goods Transport Agency Services (for short GTA Services ), from factory to customers, from railway siding to godown and from godown to customers; (b) Auction Services and (c) Rent-a- Cab Services amounting to ₹ 53,66,338/-. It appeared that 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 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
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vide impugned judgment dated 10.10.2017 allowed the appeal and set aside the demand order dated 28.09.2015. Hence, this appeal. Mr. Siddharth Ranka, learned counsel for the appellantrevenue has submitted that the Tribunal has failed to take into consideration that the words, clearance of final products from the place of removal appearing in the definition of input service under Rule 2(l) of the Rules of 2004 prior to 01.03.2008 were amended by Notification No. 10/2008-CE(NT), dated 01.03.2008 by substituting the same with the words, clearance of final products upto the place of removal . Thus, if any ambiguity, which was 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 decid
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erred 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 Commissioner of Central Excise Service Tax Vs. Ultra Tech Cement Ltd. (supra) has not noticed many important aspects, the matter therefore is required to be reconsidered. So far as the question of penalty is concerned, learned counsel argued that since the Tribunal has decided the issue against the Revenue not only in this matter but also in the matter arising out of the previous 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 q
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