2016 (7) TMI 488 - AT - Central Excise

Recovery of wrongly availed cenvat credit on the goods transport agency service utilized for outward transportation of goods which is beyond the place of removal i.e. factory gate - Held that - As find from available records that the cenvat credit taken irregularly has not been utilized for payment of Central Excise Duty on removal of the finished goods. Thus, there is no loss of Revenue, and as such, interest demand for late reversal of cenvat credit is not proper. In this context, the Hon ble Karnataka High Court in an identical set of facts in the case of Bill Forge (2011 (4) TMI 969 - KARNATAKA HIGH COURT ) have held that the assessee have not taken or utilized the credit but only availed wrong credit in their account book and on pointing out the mistake, since the assessee reversed the entry, it cannot be said that any benefit of such wrong entry was taken, and thus, the interest is not payable. Interest cannot be demanded from the appellant, since the credit taken has not been utilized for payment of Central Excise duty.

Summary

Issues:
1. Availment of Cenvat credit on service tax for outward transportation beyond factory gate.
2. Recovery of wrongly availed Cenvat credit, interest, and penalty.
3. Appeal against confirmation of interest liability and imposition of penalty.

Analysis:
1. The appellant availed Cenvat credit on service tax for outward transportation beyond the factory gate during the disputed period. The Department initiated proceedings for recovery of wrongly availed Cenvat credit, interest, and penalty. The matter was adjudicated, and upon communication of the adjudication order, the appellant reversed the wrongly availed Cenvat credit before its utilization for payment of Central Excise Duty on clearance of finished goods.

2. The appellant appealed against the confirmation of interest liability and imposition of penalty. The appellant's advocate argued that since the credit entry in the Cenvat register was reversed before utilization, there was no loss of revenue to the government. The advocate cited judgments to support the argument. On the other hand, the Revenue representative contended that interest was payable as the credit was taken irregularly and subsequently reversed, relying on a Supreme Court judgment.

3. The Tribunal analyzed the facts and legal precedents cited by both sides. It noted that the irregularly taken Cenvat credit was not utilized for payment of Central Excise Duty, resulting in no loss of revenue. Referring to the Karnataka High Court judgment, the Tribunal held that interest demand for late reversal of Cenvat credit was not justified when no benefit was derived from the wrong entry. The Tribunal distinguished the Supreme Court judgment cited by the Revenue, emphasizing that in the present case, the credit was reversed before utilization, unlike the scenario in the Supreme Court case. Consequently, the Tribunal set aside the impugned order, ruling in favor of the appellant and allowing the appeal.