TaxTMI 
TaxTMI 
2021 (6) TMI 715
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....14 of CCR, 2004 and Section 11A of Central Excise Act, 1944 read with Rule 2(l) and Rule 9(g) of CCR, 2004 and Rule 4A(2) of the Service Tax Rules, 1994; iii. I order that the demand confirmed of Rs. 32,82,878/- along with interest and penalty vide Order-in-Original No. MLR-EXCUS-000-COMMS- 012-13-14 dt. 06/20.03.2014 shall stand unaffected as there was not appealed against. I also order recovery of the same. iv. An amount of Rs. 32,82,878/- as discussed in the Order-in-Original No. MLR-EXCUS-000-COM-MS-012-13-14 dt. 06/20.03.2014 is appropriated against the demand mentioned at Sl.No.(iii) above.; v. I confirm the demand of interest on the ineligible cenvat credit disallowed at (ii) above under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11AB/11AA of the Central Excise Act, 1944. vi. I impose the penalty of Rs. 33,248/- under Rule 15 of the Cenvat Credit Rules, 2004. 2. Briefly, the facts of the present case are that the appellant is a public limited company engaged in the business of refining and manufacturing of petroleum products falling under Chapter 27 of the Central Excise Tariff Act, 1985 and it's refinery is situated at ....
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....ved by the same, appellant is before this Tribunal. 3. Heard both sides and perused the records. 4.1. Learned counsel appearing for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts, law and the binding judicial precedent. Further he submitted that this is the third time, the appellant has approached the Hon'ble Tribunal having been subject to an utterly casual and lackadaisical approach at the hands of the Departmental officers during each round of adjudication. He further submitted that the appellant being a public sector undertaking has been providing all support to the Departmental officers to verify the documents but the Department has repeatedly, without proper appraisal of facts, continued to adjudicate the matter confirming the demands. He further submitted that the demand in the show-cause notice at the commencement of the first of the earlier two rounds of litigation, was for Rs. 4,73,88,162/- and after two rounds of litigation, the amount of demand of duty has come down to Rs. 33,248/- without any additional facts being presented, which shows that the Departmental officers h....
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....rala [2001(121) ELT 11 (SC)] iv. CCE, New Delhi Vs. LML Ltd. (Scooter Division) [2002(143) ELT 431 (Tri. LB)] 4.2. Learned counsel further submitted that the respondent has misconstrued the direction in the Final Order No.21307/2014 dt. 18/07/2014 to be limited remand and not a open remand. He further submitted that the learned Commissioner has not considered the observation of the Tribunal in para 5 wherein the Tribunal has observed as "In view of the foregoing discussions, I am of the considered view that the disputed services indicated above should merit consideration as 'input service', since those services are used in relation to the business of manufacture of final product by the appellant". He further submitted that the findings of the respondent that the appellant is liable to pay interest and penalty on the premise that the same having been confirmed in the earlier Order-in-Original of the Commissioner of Central Excise, Mangalore is untenable, illegal in law and is liable to be set aside. Learned counsel further submitted that the learned Commissioner has failed to appreciate the spirit of the beneficial scheme of Modvat / Cenvat credit which is a beneficial s....
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....t imposition of penalty in such a scenario without an iota of evidence of fraud or intention to evade duty, tantamounts to unfair harassment of the appellant. He further submitted that the appellant has not concealed any material facts from the Department with intent to evade payment of duty and Department had earlier issued show-cause notice also and was aware of the details of the input services availed by the appellant; hence the imposition of penalty by holding that appellant has an intention to evade payment of duty is untenable. In support of his submission, he relied upon the following decisions:- i. CCE, Chandigarh Vs. Pepsi Foods Ltd. [2010(260) ELT 481 (SC)] ii. Uniworth Textiles Ltd. Vs. CCE, Raipur [2013(288) ELT 161 (SC)] 4.4. Learned counsel also submitted that the learned Commissioner has failed to appreciate that no malafide or mens rea can be attributed to the appellant who is a public sector undertaking and hence the question of levy of penalty cannot and does not arise in view of the decision of the Tribunal in the case of IOC Vs. CCE, Delhi- II [2017(4) GSTL 190 (Tri. Del.)]. He further submitted that specific sub-rule of Rule 15 under which....
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.... the same has been held to be input service in the case of Arm Embedded Technologies Pvt. Ltd. Vs. CCE, Cus &ST, Bangalore [2016(45) STR 133 (Tri. Bang.)] and in Goodluck Steel Tubes Vs. CCE, Noida [2013(32) STR 123 (Tri. Del.), CCE Vs. Fine Care Systems [2009(16) STR 701 (Tri. Ahmd.)]. Further as far as canteen services are concerned, I note that the outdoor catering was held to be input service prior to 01.04.2011 and during the disputed period, the same fall in the definition of input service. Similarly expenses incurred for hiring furniture for the guest house fall under the definition of input service as the guest house is used for business purposes. Further I find that this Tribunal in Final Order No.21307/2014 dt. 18/07/2014 held this service being an input service being activity in relation to appellant's business of manufacture of final goods. Further I hold that the cenvat credit availed in relation to service of subscription of periodicals is an input service. The Department without seeking any clarification/submission, chose to take soft option of confirming demand without going into merits. Similarly denying the cenvat credit on cable operator service and vehicle repai....