2013 (2) TMI 109 - AT - Central Excise

Reversal of CENVAT Credit availed - Credit against the service tax paid by them to the service provider - imposition of penalty and levy of interest on Credit wrongly availed - Held that - Accepting the objection of the Department, assessee had already reversed the Credit of Rs.80,446/- in March, 2008 and such payment has not been disputed. As the Revenue has accepted the fact that the assessee had paid interest for the entire period on CENVAT Credit wrongly availed by them no merit in the present Appeal filed by the Revenue on the aspect of penalty. Order of the Commissioner (Appeals) to the extent of dropping the penalty against the assessee is upheld. The Appeal of the Revenue is partly allowed to the extent of chargeability of interest, which is already paid by the Assessee.

Summary

Issues:
Appeal against Order-in-Appeal allowing appeal by Respondent, admissibility of CENVAT Credit on service tax paid for road construction services, imposition of penalty, levy of interest.

Analysis:
The case involves an Appeal filed by the Revenue against the Order-in-Appeal where the learned Commissioner (Appeals) allowed the appeal filed by the Respondent against the Order of the Adjudicating Authority. The Respondent, engaged in chemical manufacturing, had paid service tax for road construction services and availed CENVAT Credit. Upon audit, it was found that the service tax on road construction services was not leviable, leading to the reversal of the CENVAT Credit by the Respondent. A show cause notice was issued proposing reversal of Credit, penalty, and interest. The Adjudicating Authority confirmed the proposals, prompting the appeal. The learned Commissioner (Appeals) set aside the Adjudicating Authority's Order, leading to the Revenue's appeal before the Tribunal.

During the appeal, the Revenue's representative reiterated the findings, while the Respondent's advocate acknowledged the reversal of CENVAT Credit and payment of interest. The Tribunal observed that although the Respondent had availed CENVAT Credit against the service tax paid, they had already reversed the Credit and paid interest as required. It was noted that the eligibility of the manufacturer to utilize input/input service for CENVAT Credit is not affected by duty paid wrongly, provided other conditions are met. As the Respondent had complied with the reversal and payment of interest, the Tribunal found no merit in the Revenue's appeal regarding penalty. Therefore, the Tribunal upheld the dropping of penalty against the Respondent by the learned Commissioner (Appeals). The Appeal was partly allowed concerning the chargeability of interest, which had already been paid by the Respondent. Consequently, the Appeal was disposed of accordingly.

In conclusion, the Tribunal's decision favored the Respondent by upholding the dropping of penalty and acknowledging the payment of interest on the wrongly availed CENVAT Credit, leading to the partial allowance of the Revenue's Appeal on the aspect of interest chargeability.