TMI Blog2021 (6) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... edit taken in each of the cases and the Department did not file appeal and accepted the decision of the Commissioner. The learned Commissioner has failed to appreciate that the period involved in the present appeal pertains to March 2010 to October 2010 during that time, the definition of input service had a wide connotation and it is only after the amendment in the definition of input service w.e.f. 01.04.2011, the scope of the input service has been restricted to some extent by creating certain exclusions. Air Travel Charges - HELD THAT:- The same has been used for the purpose of business trips undertaken by the company officials /guests for business related purposes and the same has been held to be input service in the case of Arm Embedded Technologies Pvt. Ltd. Vs. CCE, Cus ST, Bangalore [ 2016 (7) TMI 1207 - CESTAT BANGALORE] - Credit allowed. Canteen Services - HELD THAT:- The outdoor catering was held to be input service prior to 01.04.2011 and during the disputed period, the same fall in the definition of input service - credit allowed. Expenses incurred for hiring furniture for the guest house - HELD THAT:- The said services also fall under the definiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following demands:- i. The proceedings initiated for disallowance of the cenvat credit of ₹ 12,34,448/- for not qualifying as input service in terms of Rule 2(l) of Cenvat Credit Rules, 2004 (CCR for short), in the Order-in-Original No. MLR-EXCUS-000-COM-MS-012-13-14 dt. 06/20.03.2014 are ordered to be dropped, as the cenvat credit of the same is allowable. ii. I disallow and order recovery of the cenvat credit of ₹ 33,248/- for not qualifying as input service under Rule 14 of CCR, 2004 and Section 11A of Central Excise Act, 1944 read with Rule 2(l) and Rule 9(g) of CCR, 2004 and Rule 4A(2) of the Service Tax Rules, 1994; iii. I order that the demand confirmed of ₹ 32,82,878/- along with interest and penalty vide Order-in-Original No. MLR-EXCUS-000-COMMS- 012-13-14 dt. 06/20.03.2014 shall stand unaffected as there was not appealed against. I also order recovery of the same. iv. An amount of ₹ 32,82,878/- as discussed in the Order-in-Original No. MLR-EXCUS-000-COM-MS-012-13-14 dt. 06/20.03.2014 is appropriated against the demand mentioned at Sl.No.(iii) above.; v. I confirm the demand of interest on the ineligible cenvat credit disallowed at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 45,50,574/- under Rule 15 of the CCR, 2004. Aggrieved by the said order, appellant preferred appeal before the Tribunal contesting the demand of cenvat credit as well as imposition of penalty. Tribunal, after hearing both the parties vide Final order No.21307/2014 dt. 18/07/2014, remanded the matter after directing the appellant to make a predepsoit of ₹ 5 lakhs. Appellant complied with the direction by predepositing ₹ 5 lakhs. Thereafter the Commissioner heard the matter and passed the impugned order. Aggrieved by the same, appellant is before this Tribunal. 3. Heard both sides and perused the records. 4.1. Learned counsel appearing for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts, law and the binding judicial precedent. Further he submitted that this is the third time, the appellant has approached the Hon ble Tribunal having been subject to an utterly casual and lackadaisical approach at the hands of the Departmental officers during each round of adjudication. He further submitted that the appellant being a public sector undertaking has been providing all support t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has merged with the Final Order No.21307/2014 dt. 18/07/2014. He also submitted that the findings rendered by the respondent viz that the findings in the earlier Order-in-Original merits no interference, is wholly incorrect and illegal and therefore liable to be set aside. For this submission, learned counsel placed reliance upon the following decisions:- i. SS Rathore Vs. State of MP [1989(43) ELT 790 (SC)] ii. State of Tamilnadu Vs. Tvl. Jeevanlal Ltd. [1997(91) ELT 268 (SC)] iii. Kuhayammed Vs. State of Kerala [2001(121) ELT 11 (SC)] iv. CCE, New Delhi Vs. LML Ltd. (Scooter Division) [2002(143) ELT 431 (Tri. LB)] 4.2. Learned counsel further submitted that the respondent has misconstrued the direction in the Final Order No.21307/2014 dt. 18/07/2014 to be limited remand and not a open remand. He further submitted that the learned Commissioner has not considered the observation of the Tribunal in para 5 wherein the Tribunal has observed as In view of the foregoing discussions, I am of the considered view that the disputed services indicated above should merit consideration as input service , since those services are used in relation to the business of manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the issue remains the same, the demand has been confirmed, without the Department establishing how its findings are now different from the one already settled. He further submitted that the Department has been continuously reducing the confirmed demand based on the directions of the Hon ble Tribunal leading to the shrinking of the demand from ₹ 4,73,88,162/- to ₹ 33,248/- after two rounds of litigation which clearly shows failure of application of mind on the part of the respondent. He further submitted that imposition of penalty in such a scenario without an iota of evidence of fraud or intention to evade duty, tantamounts to unfair harassment of the appellant. He further submitted that the appellant has not concealed any material facts from the Department with intent to evade payment of duty and Department had earlier issued show-cause notice also and was aware of the details of the input services availed by the appellant; hence the imposition of penalty by holding that appellant has an intention to evade payment of duty is untenable. In support of his submission, he relied upon the following decisions:- i. CCE, Chandigarh Vs. Pepsi Foods Ltd. [2010(260) ELT 48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch 2010 to October 2010 during that time, the definition of input service had a wide connotation and it is only after the amendment in the definition of input service w.e.f. 01.04.2011, the scope of the input service has been restricted to some extent by creating certain exclusions. 6.2. Now, coming to the individual services, I find that as far as air travel charges are concerned, the same has been used for the purpose of business trips undertaken by the company officials /guests for business related purposes and the same has been held to be input service in the case of Arm Embedded Technologies Pvt. Ltd. Vs. CCE, Cus ST, Bangalore [2016(45) STR 133 (Tri. Bang.)] and in Goodluck Steel Tubes Vs. CCE, Noida [2013(32) STR 123 (Tri. Del.), CCE Vs. Fine Care Systems [2009(16) STR 701 (Tri. Ahmd.)]. Further as far as canteen services are concerned, I note that the outdoor catering was held to be input service prior to 01.04.2011 and during the disputed period, the same fall in the definition of input service. Similarly expenses incurred for hiring furniture for the guest house fall under the definition of input service as the guest house is used for business purposes. Further I fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilized the cenvat credit and reversed the same as soon as it was pointed out and the fact of availing of cenvat credit was very much in the knowledge of the Department because the appellant has been filing the returns regularly, so I hold that interest is not payable. Further as far as imposition of penalty is concerned, I find that the decision of the Supreme Court in the case of Uniworth Textiles Ltd. cited supra, will apply in this case also. In the said case, Hon ble Supreme Court has elucidated that the burden of proof to establish the malafide, rest heavily with the person who is alleging the malafide. The appellant being a public sector undertaking cannot be attributed to have a malafide intention or mens rea to evade the payment of taxes as held in the case of IOC Vs. CCE, Delhi-II cited supra. 7. Therefore, in view of my discussion above and by relying upon the ratio of the decisions cited supra, I am of the considered view that the impugned order is not sustainable in law and therefore I set aside the impugned order by allowing the appeal of the appellant with consequential relief, as per law. (Order was pronounced in Open Court on 18/06/2021) - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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