Cce, Delhi-Iii vs Sunbeam Auto Pvt.Ltd
- CitationAppeal No. E/55313-55314/2014-Ex-SM
Ratio decidendi
The rule this decision rests on
Outdoor catering services, in respect of a period before 1.4.2011, qualify as input service entitling the manufacturer to credit, and a ground of appeal that was not raised in the show cause notice cannot be entertained by the appellate authority. Where the allegation in the show cause notice is confined to the question whether a service qualifies as input service, the Revenue cannot raise on appeal a new factual ground (whether the expense was borne by the assessee or recovered from employees) that finds no basis in the show cause notice.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of OIA No139/CE/DLH/2014 dated 3.7.2014 passed by the CCE(Appeals), Delhi-I)
Date of Hearing: 18.08.2015
Date of Order:04.09.2015
For approval & Signature:
Honble Smt.Sulekha Beevi C.S., Member (Judicial)
1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordships wish to see the fair copy of the order? seen 4. Whether order is to be circulated to the Department Authorities? Yes
CCE, Delhi-III Appellant
Vs.
Sunbeam Auto Pvt.Ltd. Respondent
Appearance:
Present for the Appellant: Shri Devender Singh, AR
Present for the Respondent: Shri Alok Arora, Advocate
Coram: Honble Smt.Sulekha Beevi C.S., Member (Judicial)
Final Order No.52757-52758/2015
Per: Sulekha Beevi C.S.
The Revenue is in appeal challenging the impugned order which allowed credit on outdoor catering services.
2. The respondents are engaged in the manufacture of parts of motor vehicles and IC engine parts and are also availing credit facility. A show cause notice was issued to the respondents proposing to disallow credit availed on outdoor catering service. The proceedings finalized in the order passed which disallowed the credit and ordered recovery alongwith interest and imposed equal amount of penalty. Aggrieved the respondents filed appeal before the Commissioner (Appeals) who allowed the credit. Hence this appeal.
3. Learned AR submitted that the respondents have failed to give proper explanation in their reply as to whether the expenses for outdoor catering services was borne by them or whether it was recovered from the employees. Against this, learned Counsel for the respondents submitted that the allegation in the show cause notice was confined to the issue whether outdoor catering services qualify as input service or not. That the ground presently put forward by the learned AR is not maintainable as there is no such allegation raised in show cause notice. Learned counsel relied on the judgement in the case of CCE, Meerut-II vs. Hindustan Coco Cola Beverages Ltd.-2012 (27) STR 440 (Tri.-Del.) and urged that it has been settled that outdoor catering service is qualified as input service for availing credit.
4. Heard both sides and perused the records.
5. The submissions made by the learned Counsel for the respondents that the issue before the adjudicating authority was confined as to whether outdoor catering service is qualified as input service or not is correct. This issue was found against the assessee by the adjudicating authority who disallowed the credit. In appeal, the Commissioner (Appeals) relying on the decision of Honble Bombay High Court in CCE, Nagpur vs. Ultratech Cement Ltd.-2010 (20) STR 577 (Bom) has held in favour of the respondents observing that the period being prior to 1.4.2011, the credit on outdoor catering service is admissible to the assessee. The dispute in this case relates to September, 2010 to August, 2011. It is submitted on behalf of the Counsel that the respondent debited the amount availed after 1.4.2011. In a catena of decisions, outdoor catering service has been held to be qualified as input service for availing credit. The arguments advanced by the learned AR that the respondents have not stated in the reply that the expenses for outdoor catering services was borne by them and that it was not recovered from the employees does not find force for the reason that there is no such allegation raised in the show cause notice. Therefore, the arguments advanced raised by the learned AR deserves to be brushed aside.
5. On hearing the submissions and perusal of the impugned order, I do not find any material irregularity to interfere with the impugned order. The appeals filed by the Revenue are dismissed. The cross objections filed by the respondents is also dismissed.
(pronounced in the open court on 04/09/2015)
(Sulekha Beevi C.S.)
Member (Judicial)
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3
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