2012 (6) TMI 634 - AT - Service Tax

Input services - Recovery of excess of CENVAT credit availed - Held that - Even if sub-rule (3) prescribes a limit of 20% for availment of service tax credit, sub-rule (5) provides for whole of the service tax credit in respect of the specified input services - sub-rule (5) prevails over sub-rules (1),(2) and (3) - in favour of assessee.

Summary

Issues:
1. Availment of CENVAT credit beyond permissible limit under Rule 6(3) of CENVAT Credit Rules, 2004.
2. Interpretation of Rule 6(5) of CENVAT Credit Rules regarding availment of service tax credit on specified services.
3. Imposition of penalty under Rule 15 of CENVAT Credit Rules and Sections 76 and 78 of the Finance Act, 1994.

Analysis:

Issue 1: Availment of CENVAT credit beyond permissible limit under Rule 6(3)
The appellant, engaged in Commercial and Industrial Construction Services, availed CENVAT credit beyond the permissible limit under Rule 6(3) of the CENVAT Credit Rules, 2004. The Commissioner found that the appellant had availed 100% of the CENVAT credit instead of the prescribed 20% on input services during 2007-08, resulting in an excess credit of Rs.11,14,303. The Commissioner imposed a penalty under Rule 15 of CENVAT Credit Rules read with Section 78 of the Finance Act, 1994, and also levied interest on the wrongly availed CENVAT credit. The appellant challenged this demand, arguing that Rule 6(5) entitled them to avail full CENVAT credit on specified services even for both taxable and exempted services.

Issue 2: Interpretation of Rule 6(5) of CENVAT Credit Rules
The key contention revolved around the interpretation of Rule 6(5) of the CENVAT Credit Rules, which allows for the full CENVAT credit on specified taxable services, irrespective of their use for taxable or exempted services. The Tribunal analyzed Rule 6(5) and observed that it contains a non-obstante clause, indicating its prevailing nature over sub-rules (1), (2), and (3). The Tribunal concluded that since Rule 6(5) explicitly permits the full credit on specified services, the demand by the department for excess service tax credit based on Rule 6(3) was legally unsustainable. Consequently, the Tribunal set aside the impugned order, allowing the appeal filed by the appellant with consequential relief.

Issue 3: Imposition of penalty under Rule 15 and Sections 76 and 78
Regarding the imposition of penalties under Rule 15 of CENVAT Credit Rules, Section 76, and Section 78 of the Finance Act, 1994, the Tribunal's decision to set aside the demand for excess service tax credit under Rule 6(3) also nullified the basis for imposing penalties related to the same. Therefore, the Tribunal's ruling in favor of the appellant on the primary issue also impacted the penalties imposed, leading to the allowance of the appeal and the removal of the penalties.

In conclusion, the Tribunal's judgment clarified the application of Rule 6(5) of the CENVAT Credit Rules, emphasizing its overriding effect on other sub-rules and upholding the appellant's right to avail full CENVAT credit on specified services. The decision resulted in the setting aside of the demand for excess CENVAT credit, penalties imposed, and interest, ultimately allowing the appellant's appeal.