2011 (5) TMI 770

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..... it of that part of the service tax which is borne by the consumer. - proportionate credit to the extent embedded in the cost of food recovered from the employee/worker not allowed [Ultratech Cement (2010 - TMI - 78203 - BOMBAY HIGH COURT)], appeal is dismissed under the second proviso to sub-section (1) of Section 35B of the Central Excise Act, stay application stands dismissed
Shri P.G. Chacko, J. Shri S. Ramakrishnan, Authorised Representative, for the Appellant. Shri Harish J., JDR, for the Respondent. [Order (Oral)]. - In this application, the appellant seeks waiver of pre-deposit and stay of recovery in respect of duty of Rs. 18,221/- and penalty of Rs. 2,000/-. The demand of duty is on account of denial of CENVAT credit on 're .....

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..... of business activity and, accordingly, CENVAT credit was allowed. 2. The learned DR submits that the appellant's right to claim CENVAT credit of the Service Tax paid on 'rent-a-cab' service in this case would largely depend on whether the cost of transportation of employees/food was incurred by the employees themselves. He submits that there is no proof whatsoever to show that the cost of transportation was incurred by the company. In the circumstances, according to the learned DR, the appellant cannot claim the benefit. In this connection, he has relied on the Hon'ble High Court's judgment in C.C.E., Nagpur v. Ultratech Cement Ltd., 2010 (20) S.T.R. 577 (Bom.) = 2010 (260) E.L.T. 369 (Bom.) wherein High Court considered, inter alia, .....

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..... rvice Tax, which was borne by the ultimate consumer of the service. If, in the present case, the company employees had borne the burden of Service Tax paid on 'rent-a-cab' service, the appellant cannot claim CENVAT credit thereof. As rightly pointed out by the learned DR records of this case do not indicate that the assessee-company adduced any evidence in this regard at the original level or even at the first appellate level. In my view, they cannot be permitted to claim the benefit at this stage. That the appellant has not brought on record any fresh evidence is also apparent from the records. In this scenario, the appellant's case is directly hit by the ruling of the High Court in Ultratech Cement case. No binding judicial authority to t .....

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