M/S Hindalco Industries Ltd vs Commissioner, Central Excise & Service ...
- Case No.Appeal No.E/10766/2013
Ratio decidendi
The rule this decision rests on
The admissibility of CENVAT credit on Service Tax paid for outdoor catering services is not open to dispute, being governed by the decisions of the jurisdictional High Court and the Bombay High Court, which hold that such credit is available. Where the cost of food recovered from employees or consumers is borne by them, CENVAT credit attributable to that recovered portion is not admissible, and the assessee must reverse the proportionate credit, as laid down by the Bombay High Court. A certificate issued by the competent authority stating the number of workmen employed at a factory or canteen is to be accepted as proof of that fact, and in the absence of a contrary certificate from another competent authority, an appellate authority cannot disregard it to deny the credit on the ground that the workforce is below the threshold.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Appeal No.E/10766/2013 [Arising out of OIA-SRP-202-VAPI-2012-13, dt.09.01.2013, passed by Commissioner (Appeals), Central Excise & Customs, Vapi]
M/s Hindalco Industries Ltd. Appellant
Vs
Commissioner, Central Excise & Service Tax, Vapi Respondent
Represented by:
For Appellant: Shri Anand Nainawati, Advocate For Respondent: Shri G. Jha, Authorised Representative
For approval and signature:
Honble Mr. H.K. Thakur, Member (Technical)
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 No 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 MR. H.K. THAKUR, MEMBER (TECHNICAL)
Date of Hearing/Decision:16.07.2015
Order No. A/11018/2015, dt.16.07.2015
Per: H.K. Thakur
This appeal has been filed by the Appellant with respect to OIA No.SRP-202-VAPI-2012-13, dt.09.01.2013. The issue involved is regarding the admissibility of CENVAT Credit of Service Tax paid on Outdoor Catering Services paid by the Appellant.
2. Shri Anand Nainawati (Advocate) appearing on behalf of the Appellant argued that the issue of admissibility of CENVAT Credit is no more res integra in view of Honble Mumbai High Court decision in the case of CCE Nagpur Vs Ultratech Cement Ltd [2010 (20) STR 577 (Bom.)] and Hon'ble Gujarat High Court judgment in the case of CCE Ahmedabad-I Vs Ferromatik Milacron India Ltd 2011 (21) STR 8 (Guj). It was argued by learned Advocate that the First Appellate Authority has denied them CENVAT Credit on the ground that the Appellants factory does not have more than 250 employees. It was his case that as per the certificate dt.01.11.2011, issued by the Administration of Daman and Diu, Dadra and Nagar Haveli Office of the Administrator Secretariat, Daman, M/s Hindalco has more than 250 workmen. That in view of the certification done by the competent authority, the First Appellate Authority does not have power to take a different view in the absence of another contrary certificate from another competent authority. Regarding the cost of the food items recovered from the employees/consumers of the Appellant, it was submitted that Appellant has agreed to reverse proportionate credit as per Mumbai High Court order in the case of CCE Nagpur Vs Ultratech Cement Ld (supra).
3. It was also submitted by the learned Advocate appearing on behalf of the Appellant that only one canteen is being run at Silvassa with respect to all the units of the Appellant in Silvassa.
4. Shri G. Jha (AR) appearing on behalf of the Revenue argued that as per the judgment of CCE Chennai Vs Sundaram Break Linings - [2010 (19) STR 172 ((Tri-Che.)], CENVAT Credit with respect to Outdoor Catering Service is not permissible and also that the factory of the Appellant individually registered does not have more than 250 employees.
5. Heard both the sides and perused the case records. So far as the admissibility of CENVAT Credit on Outdoor Catering Services is concerned, the issue is already settled by Honble Mumbai High Court in the case of CCE Nagpur Vs Ultratech Cement Ltd (supra) and the jurisdictional High Court in the case of CCE Ahmedabad-I Vs Ferromatik Milacron India Ltd (supra). However, the credit with respect to the cost recovered from the employees of the Appellant will not be admissible as per law laid down by Hon'ble Bombay High Court in the case of CCE Nagpur Vs Ultratech Cement Ltd (supra). Appellant has not disputed reversal of such Service Tax portion which is not eligible as per the law laid down by Honble Bombay High Court. Appeal filed by the appellant to that extent is dis-allowed.
6. So far as the factory of the Appellant having less than 250 workmen is concerned, the Administrator Daman and Diu, Dadra and Nagar Haveli has certified that Appellant situated at Silvassa has more than 250 workmen. The Appellant is maintaining one canteen with respect to their factories situated in Silvassa at the premises of this unit. When the competent authority has given certificate to the Appellant regarding number of employees working in the canteen of the Appellant, there is no reason to deny credit in the absence of another contrary opinion expressed by another competent authority. Therefore, the order passed by the First Appellate Authority is required to be rejected and the appeal filed by the Appellant is disallowed only to the extent indicated hereinabove.
(Dictated and pronounced in Court)
(H.K. Thakur) Member (Technical)
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