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2019 (2) TMI 81 - HC - Central ExciseCENVAT 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. 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.
Issues:
1. Eligibility of Outward Goods Transportation Service as 'input services' for CENVAT Credit. 2. Interpretation of the definition of 'input service' under Rule 2(l) of the CENVAT Credit Rules, 2004. 3. Applicability of the amended definition of 'input service' from 01.03.2008. 4. Consideration of penalty in the case. Eligibility of Outward Goods Transportation Service as 'input services' for CENVAT Credit: The appellant-Revenue challenged a judgment of the Tribunal regarding the eligibility of Outward Goods Transportation Service for CENVAT Credit. The respondent-assessee availed CENVAT Credit for services not covered under the definition of 'input service' as per Rule 2(l) of the CENVAT Credit Rules, 2004. The dispute arose from the availing of CENVAT Credit for Goods Transport Agency Services, Auction Services, and Rent-a-Cab Services. The Adjudicating Authority disallowed the CENVAT Credit, leading to an appeal by the assessee before the Tribunal, which initially remanded the matter back to the Authority. Subsequently, the Tribunal allowed the appeal, setting aside the demand order dated 28.09.2015. The appellant contended that the Tribunal failed to consider the amended definition of 'input service' from 01.03.2008, which clarified the scope of services eligible for CENVAT Credit. Interpretation of the definition of 'input service' under Rule 2(l) of the CENVAT Credit Rules, 2004: The Tribunal's decision was based on the interpretation of the definition of 'input service' under Rule 2(l) of the CENVAT Credit Rules, 2004. The appellant argued that the Tribunal overlooked the amendment in the definition, which replaced 'clearance of final products from the place of removal' with 'clearance of final products up to the place of removal.' This change aimed to remove any ambiguity regarding services like Goods Transport Agency Services, Auction Services, and Rent-a-Cab Services. The Tribunal's failure to consider this amendment led to the incorrect allowance of the appeal by the assessee. Applicability of the amended definition of 'input service' from 01.03.2008: The case involved the applicability of the amended definition of 'input service' from 01.03.2008, which clarified the scope of services eligible for CENVAT Credit. The appellant contended that the Tribunal's decision did not align with the amended definition, leading to the incorrect allowance of the appeal by the assessee. Reference to the definition of 'place of removal' in Section 4(3)(c) of the Central Excise Act, 1944 was made to support the argument that the Tribunal's decision was unjustified in light of the notification clarifying the scope of 'input service.' Consideration of penalty in the case: The issue of penalty arose in the context of the Tribunal's decision and the subsequent appeal. The appellant argued that if the judgment of the Tribunal was set aside and the demand was revived, the penalty imposed by the Adjudicating Authority should also be restored. The respondent, on the other hand, contended that since the Tribunal decided against the Revenue, including in a previous assessment year, the question of penalty should not arise. The Court decided to remand the matter to the Tribunal for a reconsideration of the penalty issue, emphasizing that no opinion on the merits of the penalty question was expressed in the judgment.
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