9911796707
TMI Blog2019 (1) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... dified to the extent of setting aside the penalty imposed without disturbing the demand or interest thereon under outdoor catering service - appeal allowed in part. - Appeal No. E/41945/2018 - Final Order No. 40050/2019 - Dated:- 10-1-2019 - Ms. Sulekha Beevi C.S., Member (Judicial) Shri Raghavan Ramabhadran, Advocate for the Appellant Shri L. Nandakumar, AC (AR) for the Respondent ORDER Brief facts are that the appellants are engaged in the manufacture of aerated water, beverages and fruit pulp or juice based drinks. They are availing the facility of CENVAT credit on various input services. Show cause notice was issued to the appellant proposing to deny CENVAT credit availed by them on canteen services provided to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Wipro Ltd. Vs. Commissioner of Central Excise, Bangalore 2018 (4) TMI 149 CESTAT Bangalore has held that outdoor catering services are excluded from the definition of input services with effect from 1.4.2011. This decision proceeds on the basis that outdoor catering services is specifically mentioned in the exclusion clause of the definition and that the intention of the legislature is to deny credit on such services. The ld. counsel argued that as per the definition of input services, the exclusion of outdoor catering is not unqualified. The definition does not exclude all catering services unconditionally. Only such outdoor catering services which are used primarily for personal use or consumption for employe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under a statutory requirement cannot be said to be used primarily for the personal use or consumption of an employee. He therefore argued that the exclusion clause of the definition will not take away outdoor catering services provided within the factory premises for the benefit of employees as per the statutory requirement. 2.3 He also adverted to the decision in the case of Hindustan Coca-Cola Beverages as reported in 2017 (49) STR 88 (Tri. Hyd.) and argued that the Tribunal in the said decision had held that outdoor catering services which are provided as per statutory requirement would be eligible for credit. Though the said decision was referred to the Larger Bench, the Hon ble High Court has referred to the said decision in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use or consumption of an employee. Outdoor catering services are used for consumption of the employees and therefore the authorities below have rightly disallowed the credit. He relied upon the decision of the Larger Bench of the Tribunal in the case of Wipro Ltd. (supra) and strongly argued that the said issue has attained finality by the decision of the Larger Bench. 4. Heard both sides. 5. The issue is with regard to the disallowance of credit on outdoor catering service / canteen service. Undisputedly, the appellant is a factory coming within the ambit of Factories Act. Section 46 of Factories Act provides that the appellant has to provide facilities like canteen for the employees within the factory premises. The ld. counsel has m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as they are used for- (a) construction or execution of works contract of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, except for the provision of one or more of the specified services; or (B) Services provided by way of renting of a motor vehicle, insofar as they relate to a motor vehicle which is not a capital goods; or (BA) Service of general insurance business, servicing, repair and maintenance, insofar as they relate to a motor vehicle which is not a capital goods, except when used by (a) a manufacturer of a motor vehicle in respect of a motor vehicle manufactured by such person; or (b) an insurance company in respect of a motor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is derived. The word means something which is more proximate or more important. When outdoor catering services, beauty treatment, health services, etc. used for personal use or consumption of an employee, it would not qualify as input service . In the instant case, as per Factories Act, 1948, the appellants are compelled to provide food facilities inside the factory. It is more importantly used by the appellant to comply with the mandatory requirement under Factories Act. If they do not comply with such provision of the Factories Act, the appellants will definitely not be able to engage in the production/manufacture of final products. Therefore outdoor catering services are used by appellant in relation to the business of manufacture an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
