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2022 (9) TMI 128 - AT - Service TaxCENVAT Credit - input service - outdoor catering services - period 2012-13, from 01.07.2012 to 2017-18 upto June 2018 - time limitation - HELD THAT:- As per the exclusion clause, it is very clear that services in relation to outdoor category have been excluded from the definition of input service. These services have been used for the personal use or consumption of the employee of the appellant. Cenvat credit scheme is a beneficial piece of legislation which allows for tariff in respect of the taxes paid on the input service and capital goods used by the manufacturer/service provider to be utilised for payment of central excise duty or service tax in respect of the goods manufactured and cleared for that output services provided - The definition of input services specifically excludes the outdoor catering services from the purview of the scheme. The argument that this service has been provided as per the Maharashtra Shops and Establishments (Regulation of Employment & Conditions of Service) Act, 2017 cannot be sustained in view of the specific exclusion provided by the definition incorporated in the scheme. This issue came for consideration of Hon’ble High Court of Karnataka in the case of Toyota Kirolsaka Motor Pvt Ltd [2021 (5) TMI 880 - KARNATAKA HIGH COURT] where it was held that There is no ambiguity in the statute and therefore, as it is a taxing statute, this Court cannot add or substitute words in the statutory provisions while interpreting the statutory provision. The statute does not leave any room for any other interpretation and therefore, in the considered opinion of this Court, the judgment does not help the appellant in any manner. In view of the express provision of Rule 2 (l) defining the input services to exclude the outdoor catering services, and the decision of larger bench of tribunal in case of Wipro Ltd., referred above the decision rendered by the Single Member Bench in case of M/S HAWKINS COOKERS LIMITED VERSUS COMMISSIONER OF CGST, THANE [2021 (3) TMI 789 - CESTAT MUMBAI] is per incurriam and cannot be relied upon as binding precedence. The view expressed in the case of Wipro Ltd., has been approved by the Hon’ble High Court of Karnataka, Hon’ble High Court of Bombay and Hon’ble Supreme Court. Time Limitation - HELD THAT:- The issue of limitation is the question of fact based on the existence of the ingredients provided by Section 73 of Finance Act, 1994 for invoking the extended period of limitation. The facts which were in the knowledge of the appellant but not disclosed at any time to the Revenue would be a suppression of fact with intention to evade payment of service tax. I am very clear in my mind that the demand made invoking extended period of time can be sustained. Even otherwise in the present case the appellant has deposited this amount on 03.07.2018 and the show cause notice was issued on 18.07.2018. It is also noted on being pointed out by the audit, the appellant has deposited the entire amount of the tax due along with the interest under protest. The amounts paid have been appropriated by the order-in-original against the demand. As the entire amounts along with interest have been paid prior to issuance of the show cause notice, in view of the Explanation 2 to the sub section (3), there are no merit in the penalty imposed on the appellant under section 78 and set aside the same. Appeal is partly allowed to the extent of setting aside the penalty imposed under Section 78 of the Finance Act, 1994.
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