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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 ..... ciary, is not admissible to the appellant. It has been rightly held by Commissioner (Appeals) in his findings that no evidence has been produced by the appellant to the effect that service tax element embedded in the payment received from the employees is not recovered from the employees/ beneficiary. Like a concept of unjust enrichment for refunds under Section 11B of the Central Excise Act, 1944, the onus is on the appellant to establish with documentary evidence that the element of service tax paid by the appellant is not recovered from the beneficiary/ employees of the appellant. On merits, therefore, the case goes against the appellant and in favour of the Revenue. Application of limitation under Section 11A of the Central Excise Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner 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 ordinarily employed. It was further argued that as per the Rule 78 (2) (g) of the Gujarat Factories Rules, 1963, only non-profit charges are to be recovered from the workers/ employees for such food, drink or other items supplied but the amount recovered shall not take into consideration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be decided. The first issue is whether cenvat credit proportionate to the amount recovered from the employees/ workers of the appellant is required to be disallowed to the appellant or not. The second issue is whether limitation under Section 11A of the Central Excise Act will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 element of service tax is recovered from the beneficiary/ employee stands defeated in view of the Hon ble High Court of Mumbai judgment in the case of Ultratech Cement Limited. It has been rightly held by Commissioner (Appeals) in his findings that no evidence has been produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of MTR Foods Limited, the inputs on which the cenvat credit was taken was prefabricated (construction) buildings etc. and the credit admissibility was exempted with respect to the inputs and there was no situation where a part of cenvat credit taken with respect to the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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