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TMI Blog2019 (6) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise, Kolkata North Commissionerate, they are taken up together for disposal by this common order. Cross Objection filed by the assessee in Departmental Appeal is also taken up for disposal by this order. 2. Briefly stated the facts of the case are that the assessee has claimed Cenvat Credit of service tax paid on various input services at their factory in Haldia during the period 2011-12 to 2014-15. The Ld. Jt. Commissioner vide Order-in-Original dated 08.06.2017 while disallowing input service credit confirmed recovery of Cenvat Credit of Rs. 56,63,558/- with interest and equivalent penalty. In the first appeal, the Ld. Commissioner allowed input service credit of Rs. 55,12,478/- and disallowed the balance credit of Rs. 1,51,080/- on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CCE Bangalore 2018 (363) ELT 1111 (Tri-LB). He submitted that assessee is accordingly entitled to avail credit of Rs. 40,51,648/-. 6. Heard both sides and perused the appeal records. 7. The main issue for determination in this case is whether the appellant is entitled to avail credit on outdoor catering services availed at the factory and whether penalty is imposable in case credit is held to not available to them. 8. On perusal of the Larger Bench decision in the case of Wipro Limited (Supra), it is observed that credit has been held to be not available on outdoor catering on the ground that food is always mainly for personal consumption. We find that in the present facts of case, it cannot be said that the facility obtained for cater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Tribunal observed that:- "10. At the first blush, I would have to agreed with the submissions made by the Revenue authorities that the judgment of the Larger Bench in the case of BDH Industries Limited (supra) would be applicable in this case, as the identical facts were decided by the Larger Bench but on deeper consideration, I find that the reference to Larger Bench was made by me in the case of BDH Industries Limited, sitting singly, only on the ground that the appellant had taken suo motu credit of excess paid duty by double debit in PLA and the and credit was taken in RG 23A Part-II; noticing contrary decisions of Tribunal in the case of Motorola India Pvt. Limited and Comfit Sanitary Napkins (I) Pvt. Limited. I find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been taken by the Hon'ble Gujarat High Court in CCE Vadodara vs. Transpek Industry Ltd 2018 (12) GSTL 29 (Guj). 11. In view of the legal position discussed above, we are of the considered view that the appellant is entitled to avail Cenvat credit on outdoor catering and therefore the order passed by the Ld. Commissioner allowing credit on outdoor catering services in factory is legally correct. In so far the imposition of penalty is concerned, we find that entire details regarding availment of credit were available to the department and thus there is no suppression on the part of the assessee. Therefore, penalty of Rs. 1,51,080/- imposed on the assessee is set aside. Both the appeals and the Cross Objection are disposed of in the above t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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