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TMI Blog2019 (6) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... GUJARAT HIGH COURT] - T he appellant is entitled to avail Cenvat credit on outdoor catering and therefore the order passed by the Ld. Commissioner allowing credit on outdoor catering services in factory is legally correct. Penalty - HELD THAT:- The entire details regarding availment of credit were available to the department and thus there is no suppression on the part of the assessee. Therefore, penalty of ₹ 1,51,080/- imposed on the assessee is set aside. Appeal allowed - decided in favor of appellant. - Excise Appeal No.77632 of 2018 WITH Excise Appeal No.78235 of 2018 And Excise Cross Objection No.77447 of 2018 - FINAL ORDER NO. 76497-76498/2019 - Dated:- 26-6-2019 - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) AND SHRI P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Ld. Commissioner has been challenged. 3. Sri Chandan Kumar, DGM (Finance) and Sri Romi Agarwal, Asst Manager (Finance) appeared for the assessee and Sri A Roy, Supdt. (AR) appeared for the Revenue. 4. The Ld. Representatives for the assessee only challenged the imposition of penalty on the ground that details regarding availment of various input services have always been informed to the Department vide letters dated 23.02.2011, 26.05.2011, 22.08.2011, 21.11.2011 and 20.06.2012 and therefore availment of credit was within the knowledge of the department. It is their submission that even if some credit is not allowed, the same is not attributable to reasons of fraud or suppression. They also relied on various decisions to submit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for an employee and not employees . 9. The Hon ble Rajasthan High Court in the case of CCE Udaipur vs. Mangalam Cement Ltd 2018 (9) GSTL 17 (Raj.) after taking note of the amended definition of input service has upheld the entitlement of Cenvat credit on outdoor catering vide its decision rendered on 24.08.2017. The appeal filed by Department against the said decision of Hon ble Rajasthan High Court has been dismissed by the Apex Court as reported in 2018 (16) GSTL J168 (SC). We note that the above decision of the Hon ble Rajasthan High Court has not been brought to attention of the Larger Bench in case of Wipro Ltd (Supra) which has been rendered on 09.02.2018. The decision of the Hon ble High Court will have a binding precedence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a was, not brought to the notice of the Larger Bench when they heard the Larger Bench reference 12. It can be seen from the above reproduced portion of the Tribunal s order as well as the Hon ble High Court s order, that the facts of the case in Motorola India Pvt. Limited is identical to the facts as is in the case before me. In my view, as no contrary judgment of any other High Court to the decision of the Hon ble High Court of Karnataka in the case of Motorola India Pvt. Limited is brought to my notice, I find that the judgment of Motorola India Pvt. Limited will hold the field and the Larger Bench decision in the case of BDH Industries being a decision of the Tribunal, shall have no binding effect. 10. The Hon ble Madras H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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