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2013 (4) TMI 328 - AT - Central ExciseDisallowance of cenvat credit proportionate to the amount recovered from the employees/ workers of the appellant - Held that:- As decided in the case of Ultratech Cement Limited [2010 (10) TMI 13 - BOMBAY HIGH COURT] that once proportionate service tax is borne by the ultimate consumer of the service, namely the worker/ beneficiary, the manufacturer cannot take credit of that part of the service tax which is borne by the consumer. Thus proportionate credit, to the extent it is embedded in the cost of food recovered from the employee/ beneficiary, is not admissible to the appellant. It has been rightly held by Commissioner (Appeals) in his findings that no evidence has been produced by the appellant to the effect that service tax element embedded in the payment received from the employees is not recovered from the employees/ beneficiary. Like a concept of unjust enrichment for refunds under Section 11B of the Central Excise Act, 1944, the onus is on the appellant to establish with documentary evidence that the element of service tax paid by the appellant is not recovered from the beneficiary/ employees of the appellant. On merits, therefore, the case goes against the appellant and in favour of the Revenue. Application of limitation under Section 11A of the Central Excise Act, 1944 - Whether limitation will be applicable when the credit improperly taken has been noticed during the course of second audit - Held that:- The judgment MTR Foods Limited (2012 (10) TMI 165 - KARNATAKA HIGH COURT) & Kay Kay Press Metal Corporation vs. CCE Valsad [2011 (5) TMI 768 - CESTAT, AHMEDABAD] as relied upon by assessee are distinguishable on facts as in the present case no separate data were given by the appellant to the department in the monthly returns & the fact that certain amounts were recovered from the beneficiaries/ workers by the appellants, was suppressed from the department and the same came to the knowledge of the department only through an audit - against assessee.
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