Custom, Excise & Service Tax Tribunal
M/S. Cummins Generator Technologies ... vs Cce, Aurangabad on 22 May, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. E/450/08, E/447/08, E/CO-91/08 Mum
(Arising out of Order-in-Appeal No. RKR(50)230/07 dated 21.01.2008 passed by the Commissioner of Central Excise & Customs (Appeals), Aurangabad)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s. Cummins Generator Technologies India Ltd.
:
Appellants
CCE, Aurangabad
Versus
CCE, Aurangabad
M/s. Cummins Generator Technologies India Ltd.
Respondents
Appearance Ms. Padmavati Patil, Advocate for Appellants Shri Kishori Lal, SDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 22.05.09 Date of Decision : 22.05.09 ORDER NO.
Per : Shri. Ashok Jindal, Member (Judicial) These are two appeals. One by the Revenue and the other by the assessee M/s. Cummins Generator Technologies India Ltd. Since both the appeals arise from the same Order-in-Appeal they are being decided together.
2. Brief facts of the case are that the appellants are engaged in the manufacture of AC Alternator and are availing Cenvat Credit facility of duty paid on inputs and capital goods. The appellants received a show cause notice as to why -
(a) Cenvat Credit amounting to Rs.1,18,004/- and Education Cess Rs.2,360/- should not be demanded and recovered under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A(1) of the CEA, 1944.
(b) Penalty should not be imposed under the provisions of Rule 15 of Cenvat Credit Rules, 2004 read with Section 11AC of CEA, 1944.
(c) Interest should not be recovered under the provisions of Rule 14 of Cenvat Credit Rules, 2004 read with Section 11AB of CEA, 1944 and alleging that the appellants have contravened the provision of Rule 3 of Cenvat Credit Rule 2004 in as much as they have availed the wrong credit of Service Tax paid on catering service.
3. On appeal, the Commissioner (Appeals) confirmed the order passed by the adjudicating authority. During the course of arguments the learned Counsel for the appellants submits that as per Rule 2(f) of the Cenvat Credit Rules, 2004 input service means any service -
i) used by a provider of taxable service for providing an output service; or
ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal and includes services used in relation to setting up, modernization, renovation or repairs of factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal procurement of inputs, activities relating to business such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal.
4. Heard both sides and perused the records.
5. The issue in this case is whether Cenvat Credit of service tax paid on outdoor catering services is covered under input service or not. The learned counsel relied on the Larger Bench decision in the case of CCE Mumbai V vs. GTC Industries 2008 (12) STR 468 (Tri. LB) wherein it was held that outdoor caterer providing catering services is input service relating to business, accordingly Cenvat credit admissible. The learned Counsel further relied on Tribunals decisions in the cases of Kaycee Industries Ltd. vs. CCE, Thane vide order No. A/152/2009/SMB/C-IV dated 26.03.2009 and CCE, Nasik vs. Jindal Saw Ltd. vide Order No. A/137/2009/SMB/C-IV dated 23.3.2009 wherein it was held that the appellants are entitled to avail Cenvat credit of service tax paid on outdoor catering service received for supply of food in the canteen attached to their factory, and to utilize the same for payment of duty on their final product during the period of dispute. On the other hand the learned SDR drew my attention to the Tribunals decision in the case of Kirloskar Oil Engines Ltd. vs. CCE, Aurangabad vide order No. A/157/2009/SMB/C-IV dated 06.04.2009 wherein it was held that in respect of a factory which employed more than 250 workers for the manufacture of excisable goods, the Bench found that outdoor catering services were used in the factory canteen for supply of food to the workers and that the cost of food so supplied formed a part of the cost of production of excisable goods.
6. I have gone through the records and find that I have not come across any pleadings as to the number of workers in the factory and as to whether the cost of supply of food in the factory canteen formed a part of the assessable value of the excisable goods during the material period.
7. The appeal is allowed by way of remand to the adjudicating authority to examine the following -
(a) Number of workers in the factory.
(b) Whether the cost of supply of food in the factory canteen formed a part of the assessable value of the excisable goods during the material period.
and pass the appropriate order within 60 days of the receipt of this order. Accordingly the appeal filed by the Revenue and Cross Objection by the appellants are also disposed of.
(Pronounced in Court) (Ashok Jindal) Member (Judicial) nsk 4