Delphi Automotive Systems Pvt Ltd vs Commissioner Of Central Excise ...
- CitationAppeal No. 171-2011-CE dated 30/05/2011 passed by Commissioner of Central Excise (Appeals-
Ratio decidendi
The rule this decision rests on
The Tribunal has no discretion to refuse condonation of delay where the appeal is taken up under the order of the Tribunal in the appellant's own earlier case; the delay of 29 days is condoned and the stay application is allowed in the same order that disposes of the appeal itself. CENVAT credit on outdoor travel services and mobile phone services is allowed, following the Tribunal's earlier decisions in the appellant's own case, which relied on the decisions in SKF Technologies, Welspun Maxsteel and Hindustan Zinc as precedent covering those services after the Supreme Court's decision in Maruthi Suzuki. Where the appellant provides canteen services on a subsidized basis, the amount paid by employees towards those services must be verified, and CENVAT credit on canteen services may be denied to the extent of the subsidization; that question is remanded to the original adjudicating authority for fresh decision.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 171-2011-CE dated 30/05/2011 passed by Commissioner of Central Excise (Appeals-I) Bangalore]
For approval and signature:
HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL 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?
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 PVT LTD PLOT NO.98A, PHASE II KIADB INDUSTRIAL AREA JIGANI, ANEKAL TALUK, BANGALORE 562106 Appellant(s)
Versus
Commissioner of Central Excise ,Customs and Service Tax BANGALORE-I POST BOX NO 5400...CR BUILDINGS, BANGALORE, - 560001 KARNATAKA Respondent(s)
Appearance:
Mr Raghavendra B. Adv
V. LAKSHMIKUMARAN & V. SRIDHARAN WORLD TRADE CENTRE NO.404-406, 4TH FLOOR, SOUTH WING BRIGADE GATEWAY CAMPUS NO.26/1, DR. RAJKUMAR ROAD, MALLESWARAM .
BANGALORE - 560 055 KARNATAKA For the Appellant Mr. N. Jagadish, A.R. For the Respondent
Date of Hearing: 08/09/2015
Date of Decision: 08/09/2015
CORAM:
HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER
Final Order No. 21877 / 2015
Per : ARCHANA WADHWA
Two appeals were filed against the same impugned order in appeal No 171/2011-CE dated 30.05.2011. There was delay of 29 days in both the appeals. The first appeal being Appeal No E/2072/2011-SM was disposed of vide Final Order No. 21936/2014 dated 24.10.2014 condoning the delay of 29 days and further disposing of the appeal itself by observing as under:
2. Heard the learned counsel and found that CENVAT Credit on canteen services, out-door travel services and mobile phone services has been denied for the period from January 2008 to June 2009 on the ground that these services are in no way related to manufacture and clearance of final products in the light of the decision in the case of Maruthi Suzuki Ltd Vs CCE Delhi [2009 (240)ELT 641 (SC). In respect of all the three services, there are precedent decisions of the Tribunal which have been passed subsequent to the decision in the case of Maruthi Suzuki Ltd. In respect of out-door catering service, the decision in the case of M/s SKF Technologies (I) Pvt Ltd Vs CCE Bangalore [2012-TIOL-651-CESTAT-Bang]; in the case of mobile phone services the decision in the case of Welspun Maxsteel Ltd. Vs CCE [2013-TIOL-546-CESTAT-MUM] and in the case of out-door travel services, Hindustan Zinc Ltd Vs CCE Jaipur [2013(29)S.T.R.492 (Tri-Del)] have been relied upon and we find reliance to be appropriate. In view of the above, we hold that appellant is eligible for the benefit of CENVAT credit. 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.
2. In view of the above order, we condone the delay and after allowing the stay petition, dispose of the appeal itself by following the earlier order of the Tribunal in the appellants own case. Accordingly, the CENVAT credit on out-door travel services and mobile phone services is allowed and in respect of canteen services, the same is remanded to the original adjudicating authority for fresh decision in terms of the directions contained in the first order referred supra. COD application, stay petition as also appeal gets disposed of in above terms. (Order pronounced in open court)
ASHOK KUMAR ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
pnr
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