2016 (12) TMI 1046 - AT - Central Excise

Tribunal grants Cenvat credit for catering services; recovery from employees doesn't affect eligibility

Pudumjee Pulp & Paper Mills Ltd Versus Commissioner of Central Excise, Pune-IV

Pudumjee Pulp & Paper Mills Ltd Versus Commissioner of Central Excise, Pune-IV - TMI Issues:Availment of Cenvat credit for outdoor catering services where 50% of the charges are recovered from employees.Analysis:The case involved a dispute regarding the availment of Cenvat credit for outdoor catering services where 50% of the charges were recovered from employees. The appellant had availed Cenvat credit, but the adjudicating authority confirmed the demand of Cenvat credit based on the recovery of 50% catering charges from employees. The Commissioner(Appeals) upheld the decision, leading to the appellant's appeal before the tribunal.The appellant argued that the amount recovered from employees (50% of catering charges) did not include the service tax paid on outdoor catering services. They contended that the service tax was entirely borne by the company, and no part of it was recovered from the employees. Citing a judgment of the Hon’ble Bombay High Court in a similar case, the appellant asserted that Cenvat credit on outdoor catering services is not available when the service tax amount is recovered from employees. They provided a CA certificate supporting their claim that employees were only required to pay 50% of the basic value without any VAT or service tax elements.On the other hand, the Revenue representative reiterated the findings of the lower authority, emphasizing that the amount recovered from employees included service tax. However, upon careful consideration of the submissions and records, the tribunal found that the amount calculated by the appellant towards catering charges represented only the basic cost without VAT and service tax elements. Referring to the Hon’ble Bombay High Court decision in a similar case, the tribunal held that if the service tax/Cenvat amount is not recovered from the employees, the credit is admissible for outdoor catering services.The tribunal relied on a relevant para of the judgment to support its decision, stating that the appellant was entitled to Cenvat credit for outdoor catering services based on the facts of the case and the legal precedent cited. Consequently, the impugned order was set aside, and the appeals were allowed.