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2015 (12) TMI 1154 - AT - Central ExciseDenial of CENVAT Credit - outdoor catering services - Penalty u/s 11AC - Invocation of extended period of limitation - Held that:- As decided by the Hon'ble High Court of Bombay in the case of Ultratech Cement Ltd. (2010 (10) TMI 13 - BOMBAY HIGH COURT ) vide order dated 25.10.2010, the appellant is not entitled to take Cenvat Credit on the amount recovered from the employees for providing subsidized food under the category of outdoor catering services. Before that there was a decision of the larger bench of this Tribunal in the case of GTC Industries Ltd (2008 (9) TMI 56 - CESTAT MUMBAI) wherein it was held that irrespective of the fact whether the appellant has recovered any amount towards providing subsidized food to the employees, the appellant is entitled to take Cenvat Credit. As there was divergent views and same has been settled by the Hon’ble High Court of Bombay in the case of Ultratech Cement Ltd. (Supra) on 25.10.2010. Therefore, I hold that in this case extended period of limitation is not invokable as held by the Hon’ble High Court of Delhi in the case of Wonderax Laboratories (2007 (10) TMI 388 - DELHI HIGH COURT ) which has been affirmed by the Hon’ble Apex Court. As the extended period of limitation is not invokable, therefore penalty under section 11(AC) of the Act is also not imposable. Denial of amount recovered from the employees is calculated on the basis of net amount recovered from the employees towards subsidized food. In fact, the said amount is considered as gross amount inclusive of all taxes. Therefore, the calculation of the actual amount on Cenvat Credit is also required to be computed - Matter remanded back - Decided partly in favour of assessee.
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