2017 (8) TMI 897 - AT - Central Excise

CENVAT credit - outdoor catering services - the Larger Bench of Tribunal in the case of Commissioner of Central Excise, Mumbai-V Vs. GTC Industries Ltd. 2008 (9) TMI 56 - CESTAT MUMBAI clarified the issue as there were conflicting decisions of the Tribunal on the issue of availability of out door catering services in canteens - Held that - The invoices included by the appellant in their appeal memorandum do not appear to be of canteen services. The CA certificate produced by the appellant in their record also does not state that the said services were in respect of canteen facility. The decision in the case of GTC Industries Ltd. would be applicable only in respect of canteen facilities. Extended period of limitation - Held that - the appellant could have held a bonafide belief that they are entitled to Cenvat credit on service tax paid in respect of canteen services. Thus, in so far as the Cenvat Credit on outdoor catering services relates to canteen services provided in the factory premises, extended period of limitation cannot be invoked. The matter in respect of admissibility of credit on outdoor catering services other than those of canteen is remanded to the original adjudicating authority - appeal allowed by way of remand.

Summary

Issues:
Denial of Cenvat Credit on outdoor catering services, Interpretation of conflicting decisions on availability of out door catering services in canteens, Applicability of definition of input service post 01/04/2011, Segregation of outdoor catering services, Admissibility of credit post 01/04/2011.

Analysis:
The appellant contested the denial of Cenvat Credit on outdoor catering services from April 2007 to December 2011. The appellant relied on a Tribunal decision and a High Court judgment regarding conflicting decisions on the availability of outdoor catering services in canteens. The appellant argued that even though the invoices were raised after 01/04/2011, the services were received before that date when outdoor catering services were considered input services. The Tribunal noted that the invoices provided by the appellant did not seem to relate to canteen services, and the CA certificate did not confirm this either. The Tribunal clarified that the previous decisions were specific to canteen services and not other outdoor catering services.

Regarding the applicability of the definition of input service post 01/04/2011, the Tribunal found that the appellant might have genuinely believed they were entitled to Cenvat credit for outdoor catering services provided in the canteen. Therefore, the extended period of limitation could not be invoked for canteen services. However, for outdoor catering services other than canteen services, there were no findings from the lower authorities and no segregation on record. The Tribunal remanded the matter to the original adjudicating authority for further examination.

The appellant also contended that credit was denied for service tax paid after 01/04/2011, despite receiving the service before that date. However, the appellant failed to provide documentary evidence to the Commissioner (Appeals), and this assertion was rejected by the lower authorities. The Tribunal observed that this ground was not raised in the appeal and could not be agitated at that stage. Ultimately, the appeal was partly allowed concerning the invocation of the extended period on outdoor catering services received in the appellants' canteen, with the matter of admissibility of credit on other outdoor catering services remanded for further review.