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2018 (4) TMI 903 - AT - Central ExciseCENVAT credit - outdoor catering service - period involved is 2010-2012, which means that it includes both the periods prior to amendment and post amendment also. Period prior to 01.04.2011 - Held that - In the period prior to 01.04.2011, the Ld. DR did not raise any objection for availment of CENVAT credit but is only agitating that the decision of Ultratech Cement Limited 2010 (10) TMI 13 - BOMBAY HIGH COURT has been appealed against before the Hon ble Apex Court and the decision on the same is still awaited - Considering the fact that for period prior upto 01.04.2011, the decision of the Hon ble High Court of Bombay in the case of Ultratech Cement Limited has not been set aside by any Court. In that circumstances, the said decision is applicable as on date - the respondent has rightly availed the CENVAT Credit on outdoor catering services prior to 01.04.2011. Period post 01.04.2011 - Held that - For the period post 01.04.2011, the issue has been examined by this Tribunal in the case of Hindustan Coca-cola Beverages Pvt. Limited 2016 (8) TMI 35 - CESTAT HYDERABAD , where it was held that outdoor catering services are used by appellant in relation to the business of manufacture and not for any personal use or consumption of employees and credit remains allowed - authorities below has rightly allowed CENVAT Credit on Outdoor catering service to the respondent. Appeal dismissed - decided against Revenue.
Issues:
1. Whether Cenvat Credit availed on outdoor catering service is allowed for the period 2010-2012. 2. Whether outdoor catering service qualifies as an input service post 01.04.2011 based on the definition provided in Rule 2(l) of Cenvat Credit Rules, 2004. 3. Whether outdoor catering services provided within factory premises are primarily for personal use or consumption of employees. Analysis: 1. The appeal concerns the allowance of Cenvat Credit on outdoor catering service for the period 2010-2012. The Revenue contested the availing of Cenvat Credit based on the exclusion of outdoor catering service from the definition of input service post 01.04.2011. The Hon'ble High Court of Bombay's decision in Ultratech Cement Limited was cited for the period prior to 01.04.2011, where no objection was raised by the Ld. DR. The Tribunal noted that the decision of the High Court has not been set aside, thus applying it to the case. Therefore, Cenvat Credit was rightly availed on outdoor catering services before 01.04.2011. 2. Post 01.04.2011, the Tribunal referred to the case of Hindustan Coca-cola Beverages Pvt. Limited, which examined the definition of input service under Rule 2(l) of Cenvat Credit Rules, 2004. The Tribunal highlighted the exclusion clause (C) which specifies services such as outdoor catering as not constituting input services if primarily used for personal use or consumption of employees. The Circular No. 334/3/2011 - TRU emphasized that services primarily for personal use of employees are not considered input services. The appellant argued that outdoor catering services within factory premises were not primarily for personal use but to comply with the Factories Act, 1948, ensuring production/manufacture continuity. The Tribunal upheld the allowance of Cenvat Credit on outdoor catering service based on the previous decision and the non-disputed facts, dismissing the Revenue's appeal. 3. The Tribunal's decision reaffirmed that outdoor catering services within factory premises, provided to comply with legal obligations like the Factories Act, are not primarily for personal use or consumption of employees. The services were deemed essential for the business of manufacture, ensuring compliance with statutory requirements. Therefore, the Tribunal upheld the allowance of Cenvat Credit on outdoor catering services, as they were integral to the manufacturing process and not primarily for personal employee use.
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