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2019 (7) TMI 256

..... the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] holding that GTA Service used for the purpose of outward transportation of goods up to the customer’s place was not covered within the ambit of amended Rule 2(l) of the CCR, 2004 and also charged applicable interest and levied applicable penalty. Penalty - HELD THAT:- Revenue has not challenged the findings of the First Appellate Authority in the impugned orders as to the deletion of penalty and hence, no interference is called for on this. It is for the Adjudicating Authority to re-examine the facts afresh - Appeal allowed by way of remand. - Excise Appeal No. 40635-40636 of 2019 - FINAL ORDER NOs. 40897-40898/2019 .....

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..... der Nos. 41362-41636/2017 dated 28.07.2017 had allowed the appeals by way of remand for verification and examination of the claim of the assessee, as per the Final Order. 1.3 In the second round of adjudication, the Adjudicating Authority again rejected the appellant s claim for benefit of credit by following the ratio of the decision of the Hon ble Apex Court in the case of Commissioner of Central Excise and Service Tax Vs. M/s. Ultra Tech Cement Ltd. reported in 2018 (9) G.S.T.L. 337 (S.C.) holding that GTA Service used for the purpose of outward transportation of goods up to the customer s place was not covered within the ambit of amended Rule 2(l) of the CCR, 2004 and also charged applicable interest and levied applicable penalty. The a .....

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..... ld apply the ratio of a decided case. 3.3 He thereafter placed reliance on the order of this Bench in the assessee s own case in Final Order Nos. 40654-40655/2019 dated 09.04.2019 wherein the impugned appeals therein have been remanded back to the file of the Adjudicating Authority for fresh verification in the light of the law laid down by the Hon ble Apex Court. 4. Per contra, Ld. AR. Shri. B. Balamurugan supported the findings of the lower authorities. 5. I have considered the rival contentions, perused the documents/orders of the lower authorities placed on record and have also gone through the various decisions referred to during the course of hearing. 6.1 I have no doubt that the matter requires re-adjudication in the light of the dec .....

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..... requires to be examined by the Adjudicating Authority i.e. establishment of the RDCs and the WSDCs. The assessee s specific case is that the point of sale in their case is the RDCs. However, this issue has not been examined by the Adjudicating Authority in the manner it was required to be examined. We say so because the Adjudicating Authority is the First Authority, who will record the findings of fact. Therefore, before the legal position is applied, a thorough exposition of the facts needs to be done. Then, law is to be applied to the facts of the case and not vice versa. 23. One more reason, which weighs in our mind, is to state that the Adjudicating Authority could have examined the factual background on account of a decision of the Del .....

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..... espect of GTA services on or after 1-4-2008. In all other aspects, the orders passed by the Tribunal stand confirmed. We make it clear that we have set aside the orders of the Tribunal as well as the Adjudicating Authority with regard to disallowance of Cenvat credit in respect of GTA services. The Adjudicating Authority shall afford an opportunity of personal hearing to the authorized representative of the assessee, take note of our observations and take a fresh decision on merits and in accordance with law. No costs. 6.2 Further, this Bench in the assessee s own case (supra) has remanded the matter back to the file of the Adjudicating Authority for fresh adjudication and the relevant paragraphs read as under : 4. I have heard the rival su .....

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