Delphi Automotive Systems (P) Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. 45/2009 dated 31/03/2009 passed by the Commissioner of Central Excise, Bangalore]

For approval and signature:

HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should 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 Departmental authorities? Yes

Delphi Automotive Systems (P) Ltd. Plot No. 98A, Phase II, Industrial Area, Jigani, Bangalore Appellant(s)

Versus Commissioner of Central Excise, Customs and Service Tax Bangalore-I Post Box No. 5400, CR Buildings, Bangalore  560 001 Karnataka Respondent(s)

Appearance:

None For the Appellant

Mr. S. Teli, DR For the Respondent

Date of Hearing: 26/06/2015 Date of Decision: 26/06/2015 CORAM:

HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 21489 / 2015

Per: ARCHANA WADHWA

Nobody is present on behalf of the appellant. Accordingly I have heard the learned DR and have gone through the impugned orders.

2. The lower authorities have confirmed the demand of duty of Rs. 6,57,131/- (Rupees Six Lakhs Fifty Seven Thousand One Hundred and Thirty One only) along with interest and imposition of penalty of Rs. 10,000/- (Rupees Ten Thousand only) under Rule 15 of Cenvat Credit Rules by denying them the cenvat credit availed on Catering Services and Tour Travel Services.

3. The dispute of availability of cenvat credit of service tax paid on Tour Travel Services received for transferring the staff from residence to the office has been held to be cenvatable services by number of decisions, the Honble High Court of Karnataka in the case of CCE, Bangalore-III Vs. Stanzen Toyotetsu India (P) Ltd. [2011 (23) S.T.R. 444 (Kar.)] has held the said services to be cenvatable input services. Accordingly I allow the credit denied in respect of the said services.

4. As regards the Catering Services it is seen that the same stands held as cenvatable services by the Larger Bench of the decision in the case of Commissioner V. GTC Industries Ltd. [2008 (12) S.T.R. 468 (Tri.-LB)]. However learned advocate placed on record the earlier decision of the Tribunal in the same appellants case wherein it was recorded as under:

Nevertheless in the case of canteen services, it has been stated that appellants are providing subsidized canteen services. Therefore, it becomes necessary for verification as to the amount paid by the employees towards the canteen services. To that extent cenvat credit may have to be denied. Only to consider the effect of subsidization and the effect of the same on cenvat credit availment, the matter is remanded to the original adjudicating authority. Appeal is disposed of in the above terms.

5. Inasmuch as the matter for the earlier period stands remanded, I remand the present matter also in respect of cenvat credit availed on Catering Services for undertaking the necessary exercise.

6. As regards penalty I hold that availing of credit by the appellant cannot be held to be any malafide action on their part so as to invite the penal action. Accordingly I set aside the penalty imposed on the appellant. Appeal is disposed of in the above manner.

(Order pronounced in open court)

(ARCHANA WADHWA) JUDICIAL MEMBER

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