2015 (10) TMI 2093 - AT - Service Tax

Excess utilisation of CENVAT Credit of 20% of the service tax Rule 6(3)(c) of CENVAT Credit Rules, 2004 Appellant contends that only interest can be charged; penalty cannot be imposed Revenue imposed interest as well as penalty apart from the demand of tax. Held That - there is no clarity on the fact in respect of the demand - Matter remanded back to Adjudicating Authority Proper opportunity of hearing given and issue to be examined at length Appeal allowed in favour of the Appellant.

Summary

Issues Involved:
Appeal against confirmation of demand of Rs. 1,10,940.00 along with interest and penalty for excess utilization of CENVAT Credit under Rule 6(3)(c) of CENVAT Credit Rules, 2004 for the period October 2004 to September 2005.

Analysis:

1. Demand for Excess Utilization of CENVAT Credit:
The appeal was filed against the confirmation of demand for excess utilization of CENVAT Credit of 20% of the service tax payable on taxable service tax, as per Rule 6(3)(c) of CENVAT Credit Rules, 2004. The Appellant was found to have utilized in excess of the allowable percentage in October 2004 and June 2005. The Appellant's representative argued that at most, interest should be payable on the excess credit utilization, citing precedents like DHL Logistics Pvt. Ltd Vs CCE 2015 (38) STR 620 (Tri-Mum) and Mumbai International Airport Pvt. Ltd. Vs CCE 2014 (33) STR 308 (Tri-Mum). Additionally, it was contended that penalty should not be imposed, referring to the decision in the case of General Manager, Telecom, BSNL Vs CCE 2015 (38) STR 1182 (Tri-Del).

2. Lack of Clarity and Remand to Adjudicating Authority:
The Tribunal noted that the issue regarding the demand of Rs. 1,10,940.00 was not raised before the lower authorities. While generally not inclined to remand matters involving small amounts, due to the lack of clarity on the facts related to the demand, the Tribunal decided to remand the matter to the Adjudicating authority for a detailed examination. The Adjudicating authority was directed to provide a proper opportunity for hearing before passing any order.

3. Decision and Conclusion:
Based on the discussion and the lack of clarity surrounding the demand, the Tribunal set aside the demand of Rs. 1,10,940.00 along with interest and penalty. The matter was remanded to the Adjudicating authority for a thorough examination. The Tribunal emphasized the need for a detailed review and proper hearing before any decision is made. Consequently, the appeal was allowed by way of remand.

This judgment highlights the importance of procedural fairness, thorough examination of issues, and adherence to legal precedents in matters concerning the utilization of CENVAT Credit and imposition of penalties.