Custom, Excise & Service Tax Tribunal
Baroda Textile Effects Pvt Ltd vs Commissioner Of C.Ex. & S.Tax, Vadodara on 14 October, 2016
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Case No Impugned Order Detail's Date of Impugned Order Passed By Appellant Respondent
E/13289/2013 OIA-PJ/176-179/VDR-I/2013-14 21/06/2013 Commissioner (Appeals) C.Ex. & S.Tax, Vadodara Sterling Gelantin Commissioner of C.Ex. & S.Tax, Vadodara-I E/13293/2013 OIA-PJ/176-179/VDR-I/2013-14 21/06/2013 Commissioner (Appeals) C.Ex. & S.Tax, Vadodara Sterling Gelantin Commissioner of C.Ex. & S.Tax, Vadodara E/13294/2013 OIA-PJ/176-179/VDR-I/2013-14 21/06/2013 Commissioner (Appeals) C.Ex. & S.Tax, Vadodara Sterling Gelantin Commissioner of C.Ex. & S.Tax, Vadodara E/13295/2013 OIA-PJ/176-179/VDR-I/2013-14 21/06/2013 Commissioner (Appeals) C.Ex. & S.Tax, Vadodara Sterling Gelantin Commissioner of C.Ex. & S.Tax, Vadodara E/13297/2013 OIA-PJ/184-185/VDR-I/2013-14 24/06/2013 Commissioner (Appeals) C.Ex. & S.Tax, Vadodara Baroda Textile Effects Pvt Ltd Commissioner of C.Ex. & S.Tax, Vadodara E/13298/2013 OIA-PJ/184-185/VDR-I/2013-14 24/06/2013 Commissioner (Appeals) C.Ex. & S.Tax, Vadodara Baroda Textile Effects Pvt Ltd Commissioner of C.Ex. & S.Tax, Vadodara Represented by:
For Appellants: Shri H. Ganguly, Advocate For Respondent: Shri Alok Srivastava, A.R. For approval and signature:
Honble Dr. D.M. Misra, Member (Judicial)
1. Whether Press Reporters may be allowed to see the No 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 of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE DR. D.M. MISRA, MEMBER (JUDICIAL) Date of Hearing/Decision:14.10.2016 Order No.A/11137-11142/2016, dt.14.10.2016 Per: Dr. D.M. Misra Heard both sides.
2. These six appeals are filed against respective OIAs passed by the Commissioner (Appeals), C.Ex. & S.Tax, Vadodara. Since the issue involved in these appeals is common, these are taken up together for disposal.
3. The brief facts of the case are that during the relevant period, the Appellant had availed CENVAT Credit on outdoor catering services (canteen services) provided to the employees in their factory. Alleging that the said canteen service is not an input service, as defined under Rule 2(l) of CCR,2994, proceedings for recovery of the credit were initiated by issuance of Show Cause Notices. On adjudication, the demands were confirmed and penalties of equal amount imposed. Aggrieved by the said orders, the Appellants preferred appeals before the learned Commissioner (Appeals), who in turn, upheld the Orders and rejected their appeals. Hence, the present appeals.
4. The learned Advocate for the Appellant submits that the canteen services are provided to the employees as a statutory requirement under labour laws and they have not recovered the entire amount from the employees for providing such services. He submits that eligibility of CENVAT Credit on outdoor catering services (canteen services) is no more res integra and covered by the judgments of Hon'ble Bombay High Courtin the case of CCE, Nagpur Vs. Ultratech Cements Ltd. 2010 (260) ELT 369(Bom.) and as well as Hon'ble Gujarat High Court in CCE,Ahmedabad Vs. Furomatik Milacrom (I) Ltd. 2011 (21) STR 8(Guj).
5. Per contra, the learned Authorised Representative for the Revenue submitted that there is no dispute on the principles of eligibility of CENVAT Credit on outdoor catering services, however, the learned Commissioner (Appeals) has rejected the appeals on the ground that the Appellants failed to provide sufficient evidence before the authorities below in establishing the fact that the amount spent in providing such outdoor catering service had not been recovered from their employees.
6. I find that Hon'ble Bombay High Court in Ultratech Cements Ltd.s case as well as Hon'ble Gujarat High Court in Furomatik Milacrom (I) Ltd (supra) has settled the principles on eligibility of CENVAT Credit relating to outdoor catering service. However, it is also necessary to keep in mind that their Lordships, while allowing CENVAT Credit observed that the amounts spent towards outdoor catering services in providing such services to the employees, it should not have recovered from the employees. From the records, I do not find any substantial evidence produced by the Appellants before the authorities below, in support of their submission that the amounts have not been recovered from their employees. I am of the view that in the interest of justice, the Appellants be given fair chance to produce evidence before the Department to establish that the amounts paid for providing such service have not been recovered from the employees on which they have availed CENVAT Credit. In the result, the matters are remanded to the original adjudicating authority so as to enable the Appellants to produce sufficient evidence to establish that the amounts spent on outdoor catering services in providing canteen services to the employees, have not been recovered from the employees. Needless to mention that reasonable opportunity of hearing be given to the Appellants. All issues are kept open. The appeals are allowed by way of remand to the original authority.
(Dictated and pronounced in the open court) (Dr. D.M. Misra) Member (Judicial) Cbb 4