2022 (6) TMI 1442 - AT - Central Excise

Waiver of penalty - penalty waiver sought on the ground that there were divergent views and subsequently issue has been settled by the Larger Bench decision in the case of M/S. WIPRO LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE BANGALORE-III 2018 (4) TMI 149 - CESTAT BANGALORE - HELD THAT - It is found that there were divergent views and the issue finally settled by the Larger Bench in the case of Wipro Ltd. - Moreover, the demand in the present case is within a normal period of one year therefore the provisions of Rule 15(1) is not invokable as there is no suppression of facts, willful misstatement, fraud or collusion etc. on the part of the appellant hence the appellant is not liable to penalty. Accordingly, the demand of Cenvat credit along with interest is maintained and penalty is set-aside. Appeal allowed in part.

Summary

Issues Involved:
Whether the appellant is entitled to Cenvat credit for outdoor catering services when expenses are collected from employees.

Analysis:
The judgment by the Appellate Tribunal CESTAT Ahmedabad dealt with the issue of Cenvat credit eligibility for outdoor catering services where expenses are recovered from employees. The appellant did not contest the demand for Cenvat credit and interest, but disputed the penalty, citing the interpretation of Cenvat credit rules. The appellant referred to the Larger Bench decision in Wipro Ltd. v. CCE to support their argument for waiving the penalty. They emphasized that the demand was raised within the normal one-year period, without any suppression of facts or willful misstatement. The appellant's position was supported by various decisions, including those from the CESTAT Allahabad Bench. On the other hand, the Revenue, represented by the Superintendent (AR), relied on judgments like Empire Industries Ltd. v. Commissioner and Toyota Kirloskar Motors cases to uphold the findings in the impugned order.

The Member (J) of the Tribunal carefully considered the arguments and records presented by both sides. It was noted that the appellant had already accepted the disallowance of Cenvat credit based on the Larger Bench's decision regarding catering charges recovered from employees. Therefore, the merit of the issue was settled against the appellant. The crucial question remaining was the liability for penalty. The Tribunal observed that there were conflicting views on the matter, which were ultimately resolved by the Larger Bench in the Wipro Ltd. case. Additionally, since the demand was raised within the standard one-year period and there was no evidence of suppression, willful misstatement, fraud, or collusion by the appellant, the provisions of Rule 15(1) regarding penalty were deemed inapplicable. Consequently, the Tribunal maintained the demand for Cenvat credit and interest while setting aside the penalty. The appeals were partially allowed, with the appellant not being held liable for the penalty.