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TMI Blog2023 (11) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... t of CENVAT Credit taken by the appellants in respect of canteen facilities provided to their employees and staff, during shifts and office timings, and availing of service tax paid thereon in respect of services provided by an 'outdoor caterer' as eligible 'input service'. The Department has contended that in terms of Rule 2(l) of the CENVAT Credit Rules, 2004, 'outdoor catering service' has been excluded from the definition of input service for availing CENVAT Credit under the said Rules. Hence, show-cause proceedings were initiated for denying the inadmissible CENVAT Credit amounting to Rs.11,14,751/- for the period January, 2016 to June, 2017 under the provisions of Rule 14 ibid and for recovery of such tax along with interest under Section 73(1), 75 of the Finance Act, 1994 besides imposition of penalty under Section 78 ibid read with Rule 15(3) ibid. The issue was adjudicated on the basis of appellant's reply letter dated 04.09.2018 to the show-cause notice and the submissions made during the personal hearing on 30.05.2019. Vide Order-in-Original dated 27.06.2019, the original authority confirmed the demand of inadmissible CENVAT Credit under Section 73(2) ibid, read with Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax is provided under the statue as per Section 75 ibid read with Rule 14 ibid. Further, for the act of omission and commission on part of the appellants in irregular availment of input credit, demand of inadmissible CENVAT Credit and penalty imposed in the Order-in-Original are sustainable and thus, he requests that the appeal filed by the appellants be set aside. 6. Heard both sides and perused the records of the case. I have also considered the additional written submissions given in the form of paper book by learned Advocate for the appellants and the Authorised Representative for the Revenue. 7. The issue in dispute is availment of CENVAT Credit in respect of Service Tax paid on the input service namely, outdoor catering services during the period January, 2016 to June, 2017. In this regard, I find that the issue is no more res integra in view of the decision of the Larger Bench of the Tribunal in the case of Wipro Ltd. (supra), wherein it has been held that the definition of 'input service' has been amended w.e.f. 01.04.2011 providing the exclusion clause, wherein the definition of input service under Rule 2(l) ibid, specifically excludes 'outdoor catering services'. It has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for suppression on this particular aspect. 8.1. In this context, the Hon'ble Supreme Court, in the case of Pushpam pharmaceuticals Company Vs. Collector of Central Excise, Bombay - 1995 (78) ELT 401 (SC) have ruled that when the Revenue authorities were aware of the facts about the assessee's activities, then issuance of show cause notice should be confined to the normal period. The relevant paragraph in the said judgement is extracted herein below: "4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxation, it ("suppression of facts") can have only one meaning that the correct information was not disclosed deliberately to escape payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression." 27. Relying on the aforesaid observations of this Court in the case of Pushpam Pharmaceutical Co. v. Collector of Central Excise, Bombay [1995 Suppl. (3) SCC 462], we find that "suppression of facts" can have only one meaning that the correct information was not disclosed deliberately to evade payment of duty, when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. It is settled law that mere failure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made herein above that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices are used primarily for personal use or consumption of any employee and thus, get excluded from definition of input service. From the above factual matrix, it could be seen that the issue has attained finality at the highest level by the Hon'ble Supreme Court on 18.11.2021 and thus, it is appropriate that demand of interest and penalty is not sustainable. This is more so, when the Tribunal has given the favourbale decision in the order dated 29.11.2017 on the basis of the judgment of Hon'ble High Court of Bombay in the case of Ultratech Cement Ltd. - 2017 (49) Service Tax Rules 94 (Bom). 10. In view of the above, I find that the demand of CENVAT Credit of Service Tax paid on outdoor catering service for the normal period alone is sustainable. However, the demand of interest for extended period is not sustainable as Department was aware of the issue as evidenced by the order of the Tribunal dated 29.11.2017 and as the issue was agitated in the highest Court by various appellate authorities as discussed in detail in paragraphs 8.1 to 9 above. Therefore, I set aside the interest and penalty imposed/confirmed in the impugned order by upholding the Order-in- Original date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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