2011 (11) TMI 261

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..... in favor of Revenue. Since issue was already decided by the Tribunal then in favor of the assessee, therefore, no suppression can be alleged against the assessee. It relates to the interpretation of the law. Hence, no penalty is imposable under Rule 15 read with Section 11AC of the Act – Decided in favor of assessee.
Mr. Sahab Singh, J. Appearance: Ms. D.M. Durando, Deputy Commissioner (AR), for appellant Ms. Anjali Hirawat, Advocate, for respondent These are two appeals filed by the Revenue against order-in-appeal No. PI/VSK/139 & 140/2009 dated 5.6.2009 passed by the Commissioner (Appeals). 2. M/s. Motherson Sumi Systems are engaged in the manufacture of excisable goods and they are availing CENVAT credit of specified duties on i .....

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..... als) relying upon the Tribunal's decision in GTC Industries case. She submits that the Hon'ble Bombay High Court in the case of CCE, Nagpur vs. Ultratech Cement Ltd. reported in 2010 (260) ELT 369 (Bom.) has finally settled the issue holding that in case the cost of catering is recovered from the employees of the factory, credit of the service tax would not be admissible to the factory on that amount which has been borne by the ultimate consumer of the service, namely the worker. She, therefore, submits that the order-in-appeal passed by the Commissioner (Appeals) is not correct and legal and needs to be set aside. 4. The learned counsel appearing for the respondent submits that the legal issue has been settled by the Hon'ble Bombay High C .....

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..... fairly conceded to the above position in law and in fact filed an affidavit affirmed by a responsible officer of the assessee wherein it is stated that the proportionate credit to the extent embedded in the cost of food recovered from the employee/worker has been reversed." 6. From the ratio of the Hon'ble High Court's order, it is clear that the assessee is not entitled to take CENVAT credit of service tax on that amount of catering service, which has been recovered from their employees. It is, therefore, ordered that the service tax amount confirmed by the Assistant Commissioner in the order-in-original is recoverable from the respondent. 7. Regarding the imposition of penalty by the Assistant Commissioner under Rule 15 of the Rules rea .....

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