IN THE CUSTOMS, EXCISE & SERVICE TAX

APPELLATE TRIBUNAL

West Block No. 2, R.K. Puram, New Delhi  110 066.

Principal Bench, New Delhi



COURT NO. III



DATE OF HEARING  : 08/05/2014.



Excise Appeal No. 1162 of 2012 (SM)



[Arising out of the Order-in-Appeal No. 05 (AKJ) ST/JPR-I/2011 dated 25/01/2012 passed by The Commissioner (Appeals), Customs & Central Excise, Jaipur.]



For Approval and signature :

Honble Mrs. Archana Wadhwa, Member (Judicial) 

1.	Whether Press Reporters may be allowed to see	:

	the Order for publication as per Rule 27 of the

	CESTAT (Procedure) Rules, 1982?



2.	Whether it would be released under Rule 27 of 		:

	the CESTAT (Procedure) Rules, 1982 for 

	publication in any authoritative report or not?



3.	Whether their Lordships wish to see the fair		:

	copy of the order?



4.	Whether order is to be circulated to the 			:

	Department Authorities?

M/s DCM Shriram Consolidated Ltd.                            Appellant                                   



	Versus



CCE, Jaipur  I                                                        Respondent

Appearance Shri S.C. Kamra, Advocate  for the appellant.

Shri B.B. Sharma, Authorized Representative (DR) - for the Respondent.

CORAM : Honble Mrs. Archana Wadhwa, Member (Judicial) Final Order No. 52118/2014 Dated : 08/05/2014 Per. Mrs. Archana Wadhwa :-

The appellants manufacture fertiliser and chemicals. They avail Cenvat credit of central excise duty paid on inputs and capital goods and service tax paid on input services as per the provisions of Cenvat Credit Rules. The point of dispute in this case is as to whether they are eligible for Cenvat credit of service tax paid in respect of 

(a) outdoor catering services availed for providing canteen facilities to the workers ;

(b) maintenance of lawns and gardens within the factory as per the requirement of Pollution Control Board ;

(c) maintenance of cycle stand located in the factory premises and ;

(d) maintenance of guest house located adjacent to the factory premises.

1.1 The total service tax credit involved on these services is Rs. 1,27,365/- which was disallowed by the Assistant Commissioner who ordered its recovery alongwith interest and imposed penalty of equal amount. The Commissioner (Appeals), vide order-in-appeal dated 1/2/12 upheld the Assistant Commissioners order, against which this appeal stands filed.

2. Heard both the sides.

3. Shri S.C. Kamra, Advocate, the learned Counsel for the appellant, pleaded that so far as outdoor catering service is concerned, the same is required to be availed for providing canteen service to the workers which is the requirement of Factories Act and, hence, the same is eligible for Cenvat credit, that in this regard he relies upon judgment of Honble Bombay High Court in the case of CCE, Nagpur vs. Ultratech Cement Ltd. reported in 2010 (20) S.T.R. 577 (Bom.), of Honble High Court of Gujarat in the case of CCE, Ahmedabad  I vs. Feromatik Milacron India Ltd. reported in 2011 (21) S.T.R. 8 (Guj.) and of Honble Karnataka High Court in the case of CCE, Bangalore  I vs. Bell Ceramics Ltd. reported in 2012 (25) S.T.R. 428 (Kar.), that maintenance of lawns and gardens is the mandatory requirement of the Pollution Control Board subject to which the permission for running the factory has been granted and, hence, the Cenvat credit of service tax paid on the services for maintenance of lawns and gardens is admissible for Cenvat credit, that in this regard he relies upon the judgments of the Tribunal in the case of CCE, Bhavnagar vs. Nirma Ltd. reported in 2010 (20) S.T.R. 346 (Tri.  Ahmd.) and in the case of CCE, Hyderabad vs. Voith Turbo Pvt. Ltd. reported in 2011 (21) S.T.R. 52 (Tri.  Bang.), that maintenance of cycle stand is also a necessary requirement for the factory workers, that guest house is used by the guests of the company and hence, the service tax paid on the guest house maintenance charges is also cenvatable, that the impugned order disallowing the Cenvat credit is not correct and prays for allowing the appeal.

4. Shri B.B. Sharma, the learned Departmental Representative, opposed the prayer by reiterating the findings of Commissioner (Appeals) in the impugned order.

5. I have carefully considered the submissions from both the sides and perused the record.

6. So far as Cenvat credit of Rs. 34,933/- in respect of outdoor catering service is concerned, the same is admissible in view of judgment of Honble Bombay High Court in the case of CCE, Nagpur vs. Ultratech Cement Ltd. (supra), as admittedly the number of workers in the appellants factory is more than 250 and, hence, the providing of canteen facility to the factory workers is mandatory requirement of the provisions of Section 46 of the Factories Act. As regards the service tax credit of Rs. 27,560/- in respect of maintenance of lawns and gardens, I find that the maintenance of lawns and gardens is a condition imposed by the Rajasthan Pollution Control Board, while giving permission to the appellant to operate this factory, as per the provisions of water (Prevention and Control of Pollution) Act, 1974 and also Air (Prevention and Control of Pollution) Act, 1981. In view of this, I am of the view that service tax credit in respect of the services for maintenance of lawns and gardens is also admissible. As regards, the service tax credit in respect of maintenance of cycle stand, the same is also a necessary requirement and, hence, the same is cenvatable service. As regards maintenance of guest house, I find the providing and upkeeping of guest house, which is adjacent to the factory premises, is necessary business requirement in as much as the factory is located outside the city boundaries. In the same fashion, it stands held by various decisions that maintenance of residential premises is associated with business activities.

7. In view of the foregoing, I set aside the impugned orders and allow the appeal with consequential relief.

(Operative part of the order pronounced in the open court.) (Archana Wadhwa) Member (Judicial) PK ??

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