TMI Blog2017 (9) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... hether it is within precinct of factory or not, though there is contradictory stand taken by assessee and Revenue, but no specific finding has been recorded by Commissioner and Tribunal has proceeded on assumption that it is within the premises of Factory. This observation of Tribunal is patently erroneous - matter remanded for fresh consideration - appeal allowed by way of remand. - Central Excise Appeal No. 2 of 2016 - - - Dated:- 17-1-2017 - Sudhir Agarwal and Ravindra Nath Mishra-II, JJ. Shri Dipak Seth, Counsel, for the Appellant. Shri Rajesh Tewari, Counsel, for the Respondent. ORDER Heard Sri Dipak Seth, Advocate, for appellant and Sri Rajesh Tewari, Advocate, for respondent. 2. This appeal under Section 35G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned counsel for parties could not dispute that Cenvat credit will be available only when Dormitory is within precinct of factory and not otherwise. The Tribunal has proceeded on assumption that Dormitory is within the precinct of factory, still Cenvat credit has been denied to assessee and it is evident from para 1 of Tribunal s order which reads as under : This appeal is directed against the impugned order dated 7-10-2011 passed by the Commissioner (Appeals), Central Excise and Service Tax, Allahabad, wherein Cenvat credit taken on the disputed services for construction of dormitory in the precincts of the factory has been denied to the appellant. 4. We have gone through order of Commissioner and find that assessee claimed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the factory premises is disputed, it was incumbent to decide this issue first since further examination would not have been necessary, if it is held in favour of Revenue. It is a jurisdictional issue which ought to have been examined by Revenue authorities, but not done. 6. Even, Tribunal has committed manifest error by misreading order of Commissioner as we find that with regard to situation of Dormitory, whether it is within precinct of factory or not, though there is contradictory stand taken by assessee and Revenue, but no specific finding has been recorded by Commissioner and Tribunal has proceeded on assumption that it is within the premises of Factory. This observation of Tribunal is patently erroneous. Therefore, we set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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