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TMI Blog2016 (7) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... cenvat credit is not to be allowed in case of service tax paid on the component of the payment made by the employees for input service of travel' was decided by Hon'ble Bombay High Court by its pronouncement dated 25.10.2010 in the case of CCE, Nagpur Vs. Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT], it cannot be held that the appellant had willfully suppressed the fact of irregular cenvat credit in case of input service of traveling. It is, therefore, right to conclude that the subject demand and recovery would be legally unauthorized beyond the normal period of one year from the relevant date. The case is remanded to the original adjudicating authority, who will freshly adjudicate and arrive at the revised liability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant had been availing cenvat credit of service tax paid on Travel Services relating to transport of their employees though transport of employees did not have any relation with the manufacturing activity of the appellant. The Revenue also alleged that the appellant had suppressed the fact of availment of credit of service tax on Travel Services from the knowledge of the Department which came to light only during the course of audit of their records by AG Audit Team. 2.1. The Revenue in its Order-in-Original dated 28.07.2011 passed by the Additional Commissioner allowed the cenvat credit of ₹ 11,44,767/- (Rupees Eleven Lakhs Forty Four Thousand Seven Hundred and Sixty Seven only) including cesses but disallowed the ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is allowed, even where the cost of food is partly borne by the employees, i.e where Catering Services are providing subsidised food to the employees/staff. When Larger Bench of the Tribunal of the CESTAT allowed cenvat credit in the case of Outdoor Catering/Canteen Services, where part cost is borne by the employees, the appellant is also accordingly entitled to the cenvat credit on the entire amount of service tax paid for the input service of traveling, even when part of cost of travel is borne by the employees. 3.1. The learned advocate for the appellant further argues that this demand/disallowance of cenvat credit is time-barred beyond the normal period of one year as the appellant did not suppress any facts from the Department and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee and no cenvat for the service tax paid on such amount will be allowed as cenvat credit to the manufacturer/assessee. 4. The Revenue has been represented by learned AR, Shri Pakshi Rajan, who has inter alia pleaded as follows: (i) The appellant did not provide relevant data/information; therefore, it is suppression on the part of the appellant with intention to evade payment of duty and demand of service tax is sustainable for the five year period i.e. beyond the normal period of one year. (ii) Interest is also liable from the appellant as held by Hon ble Supreme Court in the case of Union of India Vs. Ind-Swift Laboratories Ltd. reported in 2011 (265) E.L.T. 3 (S.C) and CESTAT, Bangalore s decision in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction; no malafides cannot be attached to the said action of taking cenvat credit. In this regard the support is taken from the Hon ble Supreme Court s decision in the case of Uniworth Textiles Ltd. Vs. CCE, Raipur reported in 2013 (288) E.L.T. 161 (S.C). Hon ble Supreme Court in the said decision has inter alia observed that mere non-payment of duties is not equivalent to collusion or willful misstatement or suppression of facts otherwise, there would be no situation for which ordinary limitation of six months would apply; inadvertent non-payment is to be met with limitation of six months, whereas deliberate default faces limitation of five years and for the latter, positive action betraying negative intention of willful/deliberate def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or suppression of facts, or contravention of any of the provisions of the Excise Act or the rules made thereunder with intention to evade payment of duty, then, the manufacturer shall also be liable to pay penalty in terms of the provisions of Section 11AC of the Excise Act. From the provisions of Rule 15(2) quoted above it is clear that penalty under Rule 15(2) is liable to be imposed only when there has been wrong cenvat credit taken or utilized on account of a fraud, willful misstatement, collusion or suppression of facts, or contravention of any of the provisions of the Excise Act of the rules made thereunder with intention to evade payment of duty. From the facts of this case, it is evident that there has not been any fraud, will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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