THE COMMISSIONER OF CUSTOMS & CENTRAL EXCISE TIRUPATI Vs. M/S. THE INDIA CEMENTS LTD.

JUDGEMENT

(1.) THESE appeals filed by the department are directed against the appellate Commissioner's order granting CENVAT credit on 'outdoor catering service' to the assessee (respondent). The period of dispute is from March 2007 to May 2008. The original authority had passed two separate orders covering the periods March 2007 to November 2007 and December 2007 to May 2008, for recovery of total amount of Rs.3,57,864/ - from the assessee towards CENVAT credit which was found to have been irregularly availed on 'outdoor catering service'. It also imposed penalties under Rule 15(3) of the CENVAT Credit Rules, 2004 and Rule 25 of the Central Excise Rules, 2002. Aggrieved, the assessee preferred appeals to the Commissioner (Appeals) and the latter by a common order allowed both the appeals relying on the Tribunal's Larger Bench decision in the case of Commissioner vs. GTC Industries Ltd.: : 2008 (12) S.T.R 468 (Tri. -LB) and few other decisions of the Tribunal including Stanzen Toyotetsu Pvt. Ltd. vs. Commissioner: : 2009 (14) STR 316 (Tri. -Bang.). In the present appeals, the department on its own interpretation of the definition of 'input service' contends that services like 'outdoor catering service' are not covered by the said definition and that the learned Commissioner (Appeals) has failed to appreciate the legislative intent underlying the definition of input service. In support of this contention, the learned Superintendent (AR) has reiterated the ground of the appeals. However, she fairly points out that the Tribunal's decision in Stanzen Toyotetsu case (supra) has been upheld by the Hon'ble Karnataka High Court viz., Commissioner vs. Stanzen Toyotetsu India (P) Ltd. : : 2011 (23) S.T.R 444 (Kar.) and that Tribunal's Larger Bench decision in GTC Industries case was upheld by the Hon'ble Bombay High Court (Nagpur Bench). Nevertheless, it is also submitted that the respondent cannot claim CENVAT credit on 'outdoor catering service' unless they prove that the service was availed for supply of food to not less than 250 workers and that no part of the cost of food was recovered from the workers. In this connection, the learned Superintendent (AR) refers to para 12 of the Karnataka High Court's judgment and para 39 of the Bombay High Court's judgment.

(2.) THE learned consultant for the respondent points out that they have filed a miscellaneous application as directed by the Bench to bring on record an affidavit in relation to partial reversal of credit and a certificate of the Range Officer certifying the correctness of the facts deposed in the affidavit. The affidavit states inter alia that the respondent reversed proportionate credit to the extent of Rs.16,380/ - and that the service tax borne by the workers (ultimate consumers of the service) was not availed as credit by the manufacturer. The Superintendent of Central Excise has certified that the respondent has reversed an amount of Rs.16,380/ - in their service tax credit account in the month of March 2011 and that the reversal is on account of cost of canteen coupons collected from their employees. The learned consultant for the respondent prays for taking the affidavit and certificate on record and granting CENVAT credit on 'outdoor catering service' to the respondent in view of the High Court judgments.

(3.) AFTER considering the submissions made by both sides on the substantive issue, I am of the view that the matter needs to be remanded to the original authority to verify the correctness of the facts pleaded before this Tribunal. The affidavit claims that proportionate credit of Rs.16,380/ - was reversed and, as on date, there is no recovery of any part of the cost of 'outdoor catering service' from the workers. It has been submitted by the learned consultant that more than 250 workers were beneficiaries of the above service. He adds that the strength of workers has never been in dispute. As rightly pointed out by the learned Superintendent (AR), the availability of CENVAT credit on 'outdoor catering service' to the respondent is not without conditions. These conditions are discernible from para 12 of the jurisdictional High Court's judgment in Stanzen Toyotetsu case, which reads as follows: