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2014 (4) TMI 834 - AT - Central ExciseDenial of CENVAT Credit - Waiver of pre deposit - outdoor catering service - Held that:- Commissioner examined the scope of the definition of "input service" independently and arrived at a conclusion against the assessee. This apart, we find that a few factual aspects are crucial in determining whether the appellant can claim the benefit of the two judgements. Firstly, the appellant should clearly plead the number of workers employed in the factory during the material period. Secondly, they should also clearly state whether the cost of service was included in the cost of production of the final products, and if so to what extent. Appellant has not pleaded any of these. They have not even claimed that no amount was recovered from the employees towards the cost of the service. In other words. the appellant has failed to set up the requisite factual foundation for claiming the benefit of the Hon'ble High Court's judgements. In this scenario, we are unable to hold that they have made out a clear prima facie case against the demand. nevertheless, for the moment, we are not impressed with the way in which the case of Ultratech Cement Ltd. was distinguished by the adjudicating authority - Following decision of CCE, Nagpur Versus Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT] and Commissioner of Central Excise, Bangalore-III, Commissionerate Versus Stanzen Toyotetsu India (P.) Ltd. [2011 (4) TMI 201 - KARNATAKA HIGH COURT] - Conditional stay granted.
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