2016 (7) TMI 872 - AT - Service Tax

Waiver of penalty - Cenvat Credit - providing taxable services and trading activity - Cenvat Credit in relation to trading activity was proposed to be denied - Held that - Though there is no escape from payment of cenvat on the non-taxable trading activity but to some extent the Ld. Counsel is correct that the maintenance of account in this regard is difficult task. - the appellant has paid the entire cenvat credit on common input services even though some part of the input service is attributed to the taxable activity. The appellant also paid the interest. - the appellant has been able to show the reasonable cause for availing the cenvat credit attributed to the trading activity. - appellant is entitled for waiver of penalty imposed under Section 78. - penalty waived - Decided in favor of assessee.

Summary

Issues:
Appeal against dropping of part of Cenvat Credit and corresponding penalty.

Analysis:
The appeal was filed against dropping part of the Cenvat Credit and corresponding penalty by the Commissioner (Appeals). The appellant, an Authorized Dealer for sale of four-wheeler motor vehicles, was engaged in providing various services and availing Cenvat Credit of input services under the Cenvat Credit Rules, 2004. The Revenue contended that since the appellant was engaged in trading activity, which is not a taxable activity, the Cenvat Credit availed on common services was incorrect. The demand was confirmed, and penalties were imposed. The appellant appealed to the Commissioner (Appeals), who reduced the demand and allowed the remaining Cenvat Credit. The appellant then approached the Tribunal seeking the dropping of the demand and waiver of the penalty.

The appellant, through their counsel, submitted that they were not contesting the demand but seeking a waiver of the penalty. They acknowledged the error in availing the Cenvat Credit on common services related to trading activity, which was not admissible. The counsel argued that maintaining separate accounts for Cenvat Credit attributed to trading and taxable activities was challenging. Citing judgments, including one concerning Mercedez Benz India Pvt. Ltd., it was emphasized that there was no malicious intent in the incorrect availing of Cenvat Credit. The appellant sought the waiver of penalty under Section 80 of the Finance Act, 1994.

The Revenue, represented by the Assistant Commissioner, reiterated the findings of the impugned order. After considering the submissions from both sides, the Tribunal noted the difficulty in maintaining separate accounts for Cenvat Credit related to trading and taxable activities. It was observed that the appellant had paid the entire Cenvat Credit on common input services, even though some part was attributed to taxable activity. Given the nature of the issue and the appellant's conduct in paying the Cenvat Credit along with interest, the Tribunal found a reasonable cause for availing the credit related to trading activity. Consequently, the penalty under Section 78 was waived, and the payment of Cenvat Credit along with interest was upheld. The appeal was partly allowed in favor of the appellant.

In conclusion, the Tribunal, after reviewing the facts and arguments presented, decided to waive the penalty imposed on the appellant for incorrect availing of Cenvat Credit related to trading activity. The appellant's payment of the entire Cenvat Credit along with interest was considered a reasonable cause for the waiver, leading to the partial allowance of the appeal.