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TMI Blog2012 (5) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... the case to the original authority. appeal and cross-objection are allowed by way of remand - E/520/10; E/CO/99/10 - 591/2011 - Dated:- 2-9-2011 - P G Chacko, J. For Appellant: Ms. Sabrina Cano, JDR For Respondent: Mr. K Parameshwaran Ms. Anuradha, Advs. Per: P G Chacko: In this appeal filed by the Department, the short question to be considered is whether the outdoor catering service availed by the respondent during the period of dispute (February, 2008 to February, 2009) to provide food to their employees through a canteen facility is an 'input service' defined under Rule 2 (l) of the CENVAT Credit Rules(CCR), 2004. The respondent had taken CENVAT credit of the service tax paid by the outdoor caterers. In a show-caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.2000/- (Rupees two thousands only) under the provisions of Rule 15(3) of Cenvat Credit Rules, 2004. Aggrieved, the respondent preferred an appeal to the Commissioner(Appeals) and the latter allowed the same following the Tribunal's Larger Bench decision in CCE, Mumbai Vs. GTC Industries Ltd. [2008(12) STR 468 (Tril. LB)] . Hence the present appeal of the Revenue. There is a cross objection filed by the respondent pleading limitation against the demand of duty. 2.1. Ld. JDR reiterates the findings of the original authority and also submits that the Department has not accepted the Tribunal's Larger Bench decision in GTC Industries' case. Ld. Counsel for the respondent points out that, in the appeal filed by the Department before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. In the nature of the arguments putforth before me, this case requires to be remanded to the original authority. If the respondent had employed not less than 250 people in their factory for the manufacture of Aluminium profiles during the period of dispute, they can claim the benefit of Hon'ble Karnataka High Court's judgment in Stanzen Toyotetsu India (P) Ltd. case (supra). Paragraphs 12 and 15 of the said judgment are reproduced below:- "12. It is in this context that when the assessee provides outdoor canteen facilities because of a statutory obligation imposed on him, under Section 46 of the Factories Act, it becomes a condition of service as far as the employees are concerned. He has paid the service tax on outdoor canteen ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent has to show that, during the material period, they had a statutory obligation under the Factories Act to provide canteen facility to their employees. Once this condition is fulfilled, the respondent can claim the outdoor catering service in question to be an 'input service' and, for that matter, also claim CENVAT credit of the service tax paid thereon as per the ruling of the Hon'ble Karnataka High Court. The case of the respondent is, apparently, supported also by the Hon'ble Bombay High Court's decision in the case of Ultratech Cements Ltd. as also by the view taken by that court in GTC Industries case. The original authority did not have occasion to verify the strength of employees in the respondent's factory as it proceeded on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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