M/S. Omax Autos Ltd vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 168/BK/GGN/2011 dated 23/05/2011 passed by Commissioner of Central Excise(Appeals), Delhi III]

M/s. Omax Autos Ltd. Appellants

Vs.

Commissioner of Central Excise Respondent

Delhi III

Excise Appeal No. 2719 of 2012 (SM)

[Arising out of Order-In-Appeal No. 222/BK/GGN/2012 dated 31/05/2012 passed by Commissioner of Central Excise(Appeals), Delhi III]

Commissioner of Central Excise Appellants

Delhi III

Vs.

M/s. Omax Autos Ltd. Respondent

Excise Appeal No. 57646 of 2013- (SM)

[Arising out of Order-In-Appeal No. 58-60/SVS/BK/GGN/2013 dated 30/01/2013 passed by Commissioner of Central Excise(Appeals), Delhi III]

Commissioner of Central Excise Appellants

Delhi III

Vs.

M/s. Omax Autos Ltd. Respondent

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

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?

4 Whether Order is to be circulated to the Departmental authorities?

Appearance:

Shri Nupur Maheshwari and Shri A P Mathur, Advocates for the Appellants - assessee

Shri R K Mishra, AR for the Revenue respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 08.06.2015

FINAL ORDER NO. A/ 51856-51858 /2015-(SM)

Per Ashok Jindal :

Revenue as well as assessee are in appeals before me against the impugned orders. As the issue involved is common in all the appeals, therefore, all the appeals are taken up together and are being disposed of by a common order.

2. The facts of the case are that the assessee is a manufacture of excisable goods and providing catering and transport facility to their employees. The case of the Revenue is that as these two services do not qualify as input service as per Rule 2(l) of CCR, 2004, therefore they are not entitled to take cenvat credit. Proceedings were initiated against the assessee for the period 2005-2006 to 2008-2009 and cenvat credit on these services are denied. Against this order, appellant is before me. For the subsequent period, the lower authorities allowed the cenvat credit on these services, therefore, Revenue is before me.

3. After hearing the parties, I find that issue is no more res integra and stands settled in the light of decision of High Court of Bombay in the case of CCE vs. Ultratech Cement [2010 (20) STR 577(Bom)], wherein it has been that any service availed by the assessee being a manufacturer of excisable goods during the course of their business, the appellant is entitled to take cenvat credit. Admittedly these two services have been availed by the assessee in the course of their business of manufacturing of excisable goods. Therefore, I hold that assessee is entitled to take cenvat credit on these services. Further, I find that in the case of GTC Industries [2008 (12) STR 468 (Tri-LB)], Larger Bench of this Tribunal has held that any amount recovered by the assessee towards providing subsidized food or subsidized travel provided to the employees, to that extent the assessee is not entitled to cenvat credit on these services. As lower authorities has not clarified or examined the said issue in the impugned orders, therefore, the matter is remanded back to the adjudicating authority only to verify the fact that whether the assessee has recovered any amount towards providing subsidized food or travel service to the employee and has taken credit or not. If on that amount, the assessee has taken the cenvat credit, the said cenvat credit is not entitled to the assessee.

4. With these terms, the appeals are disposed of by way of remand as directed herein above.

5. The adjudicating authority shall call for records from the assessee for verification and shall decide the matter within a period of 30 days after affording an opportunity of being heard to the assessee.

(Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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