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TMI Blog2018 (10) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court that Cenvat Credit on goods transport agency service availed for transport of goods from place of removal to buyer s premises was not admissible to the respondent. 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 - appeal allowed by way of remand. - D.B. Central Excise Appeal No. 138/2018 - - - Dated:- 19-9-2018 - 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 Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ₹ 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 judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax 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 Commissioner of Central Excise Service Tax Vs. Ultra Tech Cement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deserves to succeed and is accordingly allowed. Impugned judgment dated 09.11.2017 passed by the Tribunal is set aside. Order dated 28.11.2016 passed by the Adjudicating Authority to the extent of disallowance of CENVAT Credit on the aforementioned issue and interest thereon is conf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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