2022 (8) TMI 1508 - HC - Central Excise

Recovery of CENVAT Credit taken and utilized wrongly for payment of the Service Tax with interest and penalty - maintenance of separate records as required under the Cenvat Credit Rules or not - HELD THAT - The core circumstance for consideration either in the appeal before the Tribunal or this Court is whether the order of Commissioner dropping further action pursuant to notice dated 18.10.2012, basing on the report of Range Officer is legal and tenable. It is not pointed out in either of the forums that the report of range officer is erroneous on any ground or circumstance. The consequence of accepting the report of Range Officer must result in the very finding recorded by the Tribunal and the commissioner. For the assessment year 01.04.2011 to 31.03.2012, the Commissioner while seized of the matter sought a clarification from the jurisdictional Range Officer regarding the practice followed by the assessee availing Cenvat Credit and it is on the basis of the said report as well as the certificate issued by the chartered accountant, that separate accounts are being maintained the Tribunal dismissed the appeal filed by the Department and the assessee s case was accepted. When the departmental officer himself admits that there is no violation of any of the Rules and the assessee has followed 6(2) of the Cenvat Credit Rules the Tribunal is justified in dismissing the appeal. There are no good ground to interfere with the order of the Tribunal - appeal dismissed.

Summary

Issues:
1. Challenge to final order dated 14.09.2018 in S.T. No.21676 of 2014 on the file of the CESTAT, Bangalore.
2. Demand for recovery of wrongly availed cenvat credit for payment of Service Tax.
3. Imposition of interest on the wrongly availed cenvat credit.
4. Imposition of penalty under Cenvat Credit Rules, 2004.
5. Separate penalty under Sections 76 and 77 of the Finance Act, 1994.

Issue 1: Challenge to Final Order
The Commissioner of Central Excise, Customs and Service Tax filed an appeal challenging the final order dated 14.09.2018 in S.T. No.21676 of 2014 on the file of the CESTAT, Bangalore. The respondent, a shipping service company, was availing credit under the Cenvat Credit Rules, 2004 on Service Tax paid on input service. The appellant issued a show cause notice alleging the wrongful utilization of cenvat credit amounting to Rs.5,05,65,084 for payment of Service Tax, Education Cess, and Secondary & Higher Education Cess for the period 01.04.2011 to 31.3.2012.

Issue 2: Recovery of Wrongly Availed Cenvat Credit
In response to the show cause notice, the respondent denied the allegations and explained the classification of inputs into direct and indirect expenses. They clarified that the Cenvat Credit taken on indirect expenses was reversed and charged off to the Profit and Loss Account during the disputed period. The Range Officer confirmed that the respondent maintained separate accounts for Cenvat Credit, availed the full amount, and subtracted credit on indirect expenses common for taxable and exempted services. The net effect was that the input service credit for services utilized for both taxable and exempted services was not reflected in the net credit taken as shown in the ST3 returns.

Issue 3: Imposition of Interest and Penalty
The appellant sought interest and penalties under the Cenvat Credit Rules, 2004 and Sections 76 and 77 of the Finance Act, 1994. However, after considering the report of the Range Officer and the certificate issued by the chartered accountant confirming separate maintenance of accounts, the Commissioner found the demand raised in the show cause notice unsustainable. The Tribunal upheld this decision, stating that the assessee complied with the Cenvat Credit Rules and maintained separate records as required. The appeal filed by the Department was dismissed.

Issue 4: Legal and Tenability of Commissioner's Order
The core issue was whether the Commissioner's decision to drop further action based on the report of the Range Officer was legal. The Tribunal and the Court found that the Range Officer's report was accurate, and the assessee had followed the Cenvat Credit Rules. The Tribunal's dismissal of the appeal was justified as there was no violation of the Rules, and the Departmental officer confirmed compliance with the Rules.

In conclusion, the Court upheld the Tribunal's decision, stating that there was no ground to interfere with the order. The appeal challenging the final order was dismissed, affirming that the respondent had appropriately availed and utilized the Cenvat Credit, and no penalties or recovery were warranted.