TMI Blog2019 (2) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - D.B. Central Excise Appeal No. 79/2018 - - - Dated:- 19-9-2018 - 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 ₹ 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 decided on 01.02.2018) , not only demand order is liable to be revived but also penalty has to be imposed on the assessee and awarded to the Revenue. Mr. P. K. Kasliwal, learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide 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 of the fact that the assessee in that case filed review petition, which was also dismissed by the Supreme Court vide order dated 24.04.2018. On hearing learned counsel for the 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 Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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