2015 (12) TMI 410 - AT - Service Tax

Denial of CENVAT Credit - whether CENVAT credit of service tax paid on Services of Guest House and Colony maintenance service is admissible to the appellant or not - Held that - Appellant is not contesting the issue on merits but has contested the issue on time bar. It is the case of the appellant that the issue of admissibility of cenvat credit on the services availed on the Guest House and Colony maintenance services was only decided by the jurisdictional High Court in the case of CCE & Cus. vs. GHCL (2011 (5) TMI 132 - GUJARAT HIGH COURT) when the earlier decision passed by CESTAT Ahmedabad, in the case of GHCL vs. CCE, Bhavnagar (2009 (4) TMI 144 - CESTAT AHMEDABAD), was in their favour. It is observed that when an issue is disputable and a final view taken by this Bench was in favour of the assessee then appellant had a bonafide belief that cenvat credit was admissible of these services. Favourable view taken by CESTAT was reversed by Hon ble Gujarat High Court in the case of CCE & Cus, Bhavnagar vs. GHCE (supra) in 2011. Under this factual matrix extended period cannot be invoked and demand has to be restricted to the period within one year from the date of show cause notice. The amount involved within the period of one year should be worked out by the adjudicating authority and communicated to the appellant. The same should be paid by the appellant along with interest. Imposition of penalty upon the appellant is concerned, no intention to evade duty can be attributed to the appellant when the issue of admissibility of cenvat credit on the amount of service was disputed. Accordingly, penalty imposed by the adjudicating authority under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 111AC of the Central Excise Act, 1944 is set-aside - Decided partly in favour of assessee.

Summary

Issues: Admissibility of CENVAT credit on service tax paid for Guest House and Colony maintenance services; Time bar for invoking extended period; Imposition of penalty.

Admissibility of CENVAT Credit on Services: The appellant filed an appeal regarding the admissibility of CENVAT credit on service tax paid for Guest House and Colony maintenance services. The appellant's advocate argued that the issue had been previously decided in favor of the assessee by CESTAT Ahmedabad in a specific case. However, the jurisdictional High Court later overturned this decision. The advocate contended that since the issue was disputable and only settled by the High Court in 2011, the extended period should not be invoked. The Tribunal agreed, stating that the appellant had a genuine belief in the admissibility of the credit based on the favorable earlier decision by CESTAT. Therefore, the demand was restricted to within one year from the date of the show cause notice.

Time Bar for Invoking Extended Period: The Revenue argued that the extended period should apply due to the case being detected during an audit. However, the Tribunal held that since the issue was disputable and only conclusively settled by the High Court in 2011, the extended period could not be invoked. The demand was limited to within one year from the date of the show cause notice, and the appellant was instructed to pay the amount involved within that period along with interest.

Imposition of Penalty: The Tribunal found that no intention to evade duty could be attributed to the appellant, as the issue of admissibility of CENVAT credit on the services was disputed. Therefore, the penalty imposed by the adjudicating authority was set aside under Rule 15(2) of the CENVAT Credit Rules, 2004, read with Section 111AC of the Central Excise Act, 1944.

In conclusion, the appellant's appeal was allowed in part, with relief granted on the issues of time bar for invoking the extended period and the imposition of penalty.