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TMI Blog2017 (3) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the appellants during the period April, 2006 to March, 2008 and April, 2008 to December, 2008 respectively. 2.2 Two show cause notices were issued on 23.12.2008 and 06.05.2009 respectively. In the show cause notice dtd. 23.12.2008 extended period was also invoked alleging that the appellants had wilfully suppressed the facts from the Department with intention to avail irregular cenvat credit. Penalty under Rule 15 of CCR, 2004 read with Section 11AC of the Central Excise Act, 1944 was proposed. In the second notice, penalty under Rule 15(3) of CCR, 2004 was proposed. In the adjudication, the adjudicating authority disallowed the credit of Rs. 1,45,929/- availed during period April, 2006 to March, 2008 and credit of Rs. 67,175/- during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cost of outdoor catering services borne by the appellants is included in the assessable value of final products. He stated that this amount has admittedly not been recovered from the employees that were borne by the appellants. He further pleaded that the demand for the period April, 2006 to November, 2007 is time barred as the show cause notice was issued on 23.12.2008 and there was no suppression on the part of the appellants and they were under bonafide belief that cenvat credit of service tax paid on outdoor catering services was eligible. He stated that the instant case involved interpretation of complex provisions of law. He relied upon the following judgments: (a) Padmini Products vs. CCE 1989 (43) ELT (SC) (b) CCE vs. Chemphar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75/- already deposited by them and they are contesting only the amount of Rs. 3,36,496/- and penalty of Rs. 2,13,104/-. The issue regarding input credit on outdoor catering services for the benefit of employees borne by the appellants is no longer res integra and has been settled in CCE, Nagpur vs. Ultratech Cements Ltd. 2010 (260) E.L.T. 369 (Bombay). It has been followed by numerous judgments of the Tribunal where this position has been reiterated. In view of the settled legal position, the appellants are entitled for input service credit of Rs. 3,36,496/-. 7. The Ld. Advocate has argued that there was no suppression on part of the appellants as they were filing returns regularly, disclosing the availment of Cenvat Credit. They have ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 15(3) for second show cause notice. As rightly pointed out by the Ld. Advocate, Rule 15(1) and 15(2) ibid are not applicable in their case as the same pertain to inputs and capital goods. Rule 15 (4) of the credit Rules applies to provider or output services. Hence, the appellants are liable to penalty under Rule 15 (3) of the Cenvat Credit Rules. Penalty is therefore, reduced to Rs. 4000/- i.e. Rs. 2000/- each in respect of show cause notice dt. 23.12.2008 and show cause notice dt. 06.05.2009. 9. In the result, (i) The demand of Rs. 3,36,496/- is set aside. (ii) Demand for Rs. 2,13,104/- is upheld. (iii) Invocation of extended period is upheld. (iv) Penalty is reduced to Rs. 4,000/- (Rs. 2,000/- apiece for each SCN) 10. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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