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TMI Blog2013 (4) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount recovered from the employees/ beneficiaries of canteen is admissible to the appellant or not. Under the above impugned order, Commissioner (Appeals) has rejected the reliance placed by the appellant on the judgment of the Larger Bench decision of the Tribunal in the case of Commissioner of Central Excise, Mumbai vs. GTC Industries Limited [2008 (12) STR 468 (Tri. LB.)] in the light of the decision of the Hon'ble High Court of Mumbai in the case of Ultratech Cement Limited [2010 (20) STR 577], hence the present appeal. 3. Heard both sides. Learned consultant of the appellant argued that as per the Factories Act, the State Government, by Rules make it mandatory for the units to run a canteen where more than 250 workers are ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Commissioner of Central Excise Nagpur vs. Ultratech Cement Limited [2010 (20) STR 577 (Bom.)]. He would mainly emphasize on Para 39 of the judgment, which is discussed by Commissioner (Appeals) in Para -4 of the impugned order dated 14.3.2012, that cenvat credit with respect to proportionate credit to the extent embedded in the cost of food recovered from the employees/ workers is required to be reversed. On the point of time-bar, he argued that the fact of recovery of amount from the employees/ workers was not made known to the department, therefore the judgments relied upon by the appellant regarding time-bar are not applicable to the facts and circumstances of this case. 5. In this appeal, there are two issues required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the above, it is seen that the Hon'ble High Court of Mumbai has held that once proportionate service tax is borne by the ultimate consumer of the service, namely the worker/ beneficiary, the manufacturer cannot take credit of that part of the service tax which is borne by the consumer. In view of this judgment, proportionate credit, to the extent it is embedded in the cost of food recovered from the employee/ beneficiary, is not admissible to the appellant. In fact, it is clear from the facts narrated in Para -2 of the show cause notice dated 15.10.2010 issued to the appellant that demand is made only with respect to that amount which is recovered from the beneficiary/ employees of the appellant. The argument of the appellant that no elem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit with respect to prefabricated (construction) building etc. and the first audit party accepted the same and only during the second audit they noticed the mistake and initiated recovery proceedings. In this appeal, the order of the Tribunal was upheld by the Hon'ble High Court on limitation itself, without going into the merits of the case. In the present case, no documentary evidence has been brought forward by the appellant that they indicated the amounts recovered from the beneficiaries/ employees in the monthly returns filed with the department. As no such details are forthcoming to have been brought to the notice of the department and the same could be known by the department only during the course of second audit. In the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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