TMI Blog2019 (7) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - Dated:- 4-7-2019 - MR. P. DINESHA, MEMBER (JUDICIAL) Shri. M. Kannan, Advocate for the Appellant Shri. B. Balamurugan, Authorized Representative for the Respondent ORDER The appellant is engaged in the manufacture of Castings for Automobiles and Motor Vehicle Parts. The appellants, believing in good faith that they are eligible to avail CENVAT Credit for inputs, input services and capital g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 appellant thereafter filed appeals before the Commissioner of G.S.T. and Central Excise (Appeals-II), Chennai and the Ld. First Appellate Authority vide impugned Orders-in-Appeal Nos. 662 and 663/2018 dated 28.12.2018 while upholding the denial of credit, has however deleted the penalty imposed under Rule 15 of the CCR, 2004. Aggrieved by the denial of credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decision of the Hon ble jurisdictional High Court (supra) as also that of the Hon ble Supreme Court (supra). The Hon ble jurisdictional High Court in the case of M/s. Bata India Ltd. (supra) has, after considering the decision in M/s. Ultra Tech Cement Ltd. (supra), held as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Delhi Tribunal in the case of Pr. CCE v. Lafarge India Pvt. Ltd. [reported in 2017 (52) S.T.R. 350 (Tri.-Del.)]. According to the assessee, the said case was on identical facts and it was held in that decision that the place of removal is inextricab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority 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 submissions and have gone through the ratio of the decision of this very Bench relied upon by the Ld. Advocate in Final Order dated 25.02.2019 wherein the matters have been remanded to the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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