Custom, Excise & Service Tax Tribunal
H & R Johnson (India) vs Cce Raigad on 22 May, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPLICATION NO. E/S/99937/13
IN APPEAL NO. E/89798/13 Mum
(Arising out of Order-in-Appeal No. SK/264/RGD/2013 dated 30.09.2013 passed by the Commissioner of Central Excise (Appeals), Mumbai II)
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
H & R Johnson (India)
:
Appellant
Versus
CCE Raigad
Respondent
Appearance Ms Anjali Hirawat, Advocate For appellants Shri B. Kumar Iyer, Supdt (A.R.) For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 22.05.2014 Date of Decision : 22.05.2014 ORDER NO.
Per Ashok Jindal The appellant is in appeal along with an application for stay against the impugned order.
2. Brief facts of the case are that the appellant being a manufacturer of excisable goods have availed CENVAT Credit on outdoor catering service in their factory. Input service credit on outdoor catering service was denied as the same does not qualify as per Rule 2(l) of the CENVAT Credit Rules, 2004 as input service. Proceedings were initiated against the appellant and the adjudicating authority relying on the decision in the case of CCE v. Ultra Tech Cement Ltd. reported in 2010 TIOL 745 HC-MUM held that the appellant is not entitled for input service credit on the amount for which they have recovered from the employees towards outdoor catering service. Aggrieved by the order, the appellant filed an appeal before the Commissioner (Appeals) who in turn held that the appellant is not entitled for input service credit on the ground that the issue of admissibility of CENVAT Credit on canteen services is still in limbo stage and has not attained finality. Aggrieved by the said order, the appellant is before me.
3. After hearing both sides, I am of the view that the appeal itself can be disposed of at this stage. Therefore, after granting waiver of the requirement of pre-deposit, I take up the appeal for final disposal with the consent of both sides.
4. The learned Counsel appearing for the appellant submits that as per the decision of the Honble Bombay High Court (supra) outdoor catering service is an eligible input service under Rule 2(l) of the CENVAT Credit Rules, 2004, and credit of the service tax paid thereon would be available subject to the condition that they should not have recovered the cost of the food from their employees.
5. On the other hand, the learned A.R. supported the impugned order.
6. In the case of Ultratech Cement (supra) the Honble Bombay High Court held that the service tax pertains to the amount which has not been recovered from the employees towards outdoor catering is entitled for input service credit. Against the said decision of the Honble Bombay High Court, no stay has been obtained from the Honble Apex Court by the Revenue. Therefore, the decision of Ultratech Cement (supra) is binding on the Revenue. The findings of the learned Commissioner (Appeals) that would have been appreciated if the appeal of the appellant has been kept abeyance till the issue attained finality instead of going into litigation as there is no stay against the decision of the Honble Bombay High Court in the case of Ultratech Cement (supra). Therefore, I hold that the appellant is entitled for input service credit on the service tax amount pertains to outdoor catering service which has not been recovered from the employees.
7. With these observations, the impugned order is set aside and the appeal is allowed. Stay application is also disposed of in the above terms.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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