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TMI Blog2012 (12) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... o May 2008, for recovery of total amount of Rs.3,57,864/- from the assessee towards CENVAT credit which was found to have been irregularly availed on outdoor catering service . It also imposed penalties under Rule 15(3) of the CENVAT Credit Rules, 2004 and Rule 25 of the Central Excise Rules, 2002. Aggrieved, the assessee preferred appeals to the Commissioner (Appeals) and the latter by a common order allowed both the appeals relying on the Tribunal s Larger Bench decision in the case of Commissioner vs. GTC Industries Ltd.: 2008 (12) S.T.R 468 (Tri.-LB) and few other decisions of the Tribunal including Stanzen Toyotetsu Pvt. Ltd. vs. Commissioner: 2009 (14) STR 316 (Tri.-Bang.). 2. In the present appeals, the department on its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s inter alia that the respondent reversed proportionate credit to the extent of Rs.16,380/- and that the service tax borne by the workers (ultimate consumers of the service) was not availed as credit by the manufacturer. The Superintendent of Central Excise has certified that the respondent has reversed an amount of Rs.16,380/- in their service tax credit account in the month of March 2011 and that the reversal is on account of cost of canteen coupons collected from their employees. The learned consultant for the respondent prays for taking the affidavit and certificate on record and granting CENVAT credit on outdoor catering service to the respondent in view of the High Court judgments. 4. On 16.9.2011, when the consultant for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondent is not without conditions. These conditions are discernible from para 12 of the jurisdictional High Court s judgment in Stanzen Toyotetsu case, which reads as follows: 12. It is in this context that when the assessee provides outdoor canteen facilities because of a statutory obligation imposed on him under Section 46 of the Factories Act, it becomes a condition of service as far as the employees are concerned. He has paid the service tax on outdoor canteen services. The said expenses incurred by the assessee will also be taken into consideration before fixing the price of the final product. It may be a welfare measure but certainly it is not a charity provided by the employer to the employees. It is an onerous leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his kind of verification is called for in the light of the High Court judgments. If, upon such verification of facts, it is found that the relevant conditions have been satisfied by the respondent, they would be entitled to the CENVAT credit in question. Needless to say that a reasonable opportunity of adducing evidence and of being personally heard should be extended to the respondent. 7. The orders of the lower authorities are set aside and these appeals are allowed by way of remand to the original authority. The miscellaneous application also stands allowed. 8. In the event of fee on miscellaneous application not being paid as undertaken by the consultant today, both the appeals of the department shall stand allowed in ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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