TMI Blog2018 (9) TMI 1834X X X X Extracts X X X X X X X X Extracts X X X X ..... he demand is liable to be revived. However, considering the totality of circumstances, entire matter deserves to be remanded back to the Tribunal to consider not only the question of penalty and limitation but also the original demand as the decision on the question of limitation may have the effect of diluting the same to some extent. Appeal allowed by way of remand. - D.B. Central Excise Appeal No. 15/2018 And D.B. Civil Cross Objection No. 27/2018 - - - 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 Mr. Mohammad Rafiq Appeal No. 15/2018 has been filed by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plastic Pipes falling under Chapter No. 68 and 70 respectively of the Schedule-I appended to the Central Excise Tariff Act, 1985. During the course of audit of record of the respondent-assessee, it was noticed that it has availed CENVAT credit of service tax paid on outward transportation of goods i.e. from factory gate to buyer/consumer s premises for the period from May, 2010 to December, 2012 amounting to ₹ 73,58,446/-. It appeared that those services were not covered under the definition of input service under the provisions of Rule 2(l) and Rule 3 of the CENVAT Credit Rules, 2004 (for short the Rules of 2004 ). Therefore, a show cause notice dated 03.07.2013 was issued to the respondent-assessee proposing recovery of the CENV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he context of 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 submitted that review petition was filed by the Revenue, but the same was also dismissed. 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 original demand order is liable to be revived but penalty ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise for consideration. Learned counsel argued that as per the law that was prevalent at the time when the Tribunal passed the impugned judgment, when the respondent-assessee was not required to satisfy the original demand and acted throughout under that impression, therefore there was no question of any penalty to be paid on that. Mr. Siddharth Ranka, learned counsel for the appellant rejoined and submitted that the penalty is consequential as the issue raised in this matter is squarely covered by the judgment of the Supreme Court. In case the judgment of the Tribunal is set aside and original demand is revived, the penalty imposed by the Adjudicating Authority is also liable to be restored. On the question of limitation, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was also dismissed by the Supreme Court vide order dated 24.04.2018. It is argued that the question of limitation would not affect the entire order as only small part of entire period under consideration is covered by the question of limitation. 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 Tribunal cannot be sustained in law and the demand is liable to be revived. However, considering the totality of circumstances, entire matter deserves to be remanded back to the Tribunal to consider not only the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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