TMI Blog2020 (1) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... mount relating to airfreight. In view of the decision of the Hon ble Madras High Court in the case of M/S. J.M. BAXI CO. VERSUS THE GOVERNMENT OF INDIA [ 2016 (6) TMI 813 - MADRAS HIGH COURT] and the Apex Court decision in the case of GOVERNMENT OF INDIA VERSUS CITEDAL FINE PHARMACEUTICALS [ 1989 (7) TMI 100 - SUPREME COURT] , the adjudication by the Commissioner(Appeals) is bad in law as the Commissioner(Appeals) has not given any finding for taking the decision after 12 years and the same has caused prejudice. Scope of SCN - HELD THAT:- It is found that the Commissioner(Appeals) has gone beyond the show-cause notice. The show-cause notice was issued alleging that outward freight is not included in the input service whereas in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and transportation service on the export of finished goods. Thereafter a show-cause notice dt. 19/09/2006 was issued to the appellant demanding the ineligible credit. After following the due process, original authority vide the Order-in-Original dt. 19/01/2007 confirmed the demand of ₹ 1,48,164/- under Rule 14 of CCR along with interest and equal penalty. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) and the Commissioner(Appeals) vide the impugned order has partly allowed the appeal. 3. Heard both sides and perused the records. 4. Learned counsel appearing for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the definition of input service during the relevant period, as per Rule 2(l) of CCR, the outward transportation service up to the place of removal falls under the definition of input service. He also relied upon the decision of the Apex Court in the case of CC, CE ST Va. Andhra Sugars ltd. [2018(10) GSTL 12 (SC)] wherein the Supreme Court held that outbound transportation from the place of removal gets covered as by the definition of input service for the period prior to 01/04/2008. Outbound transportation cannot be understood to be transportation by road which also includes air freight. Further he relied upon the decision of the Apex Court in the case of CCE ST Vs. Ultra Tech Cement Ltd. [2018(9) GSTL 337 (SC)] wherein the Apex Court hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to the amendment in the definition of input service effected from 01/04/2008. Further I find that the appeal before the Commissioner(Appeals) was filed in 2007 and the Commissioner(Appeals) after 12 years has given the personal hearing and decided the appeal and has denied the CENVAT credit on air freight and remanded the matter for quantification of the amount relating to airfreight. In view of the decision of the Hon ble Madras High Court in the case of JM Baxi Co. and the Apex Court decision in the case of Citadel Fine Pharmaceuticals, the adjudication by the Commissioner(Appeals) is bad in law as the Commissioner(Appeals) has not given any finding for taking the decision after 12 years and the same has caused prejudice. Further I f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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