2016 (8) TMI 93 - HC - Service Tax

Availing cenvat credit while claiming exemption notification no. 1/2006-ST - reversal of cenvat credit and payment of service tax with interest by respondent. - Held that - subsequent reversal of credit even after utilization of the same and clearance of the final product will relate to a situation as if no credit was ever availed, and Tribunal on finding of fact found that the respondent is entitled to full waiver. Findings based on facts. No substantial question of law involved. No illegality in the impugned order passed by tribunal. - Decided against the revenue.

Summary

Issues:
Claim of cenvat credit under Notification No. 1/2006-ST, Admissibility of abatement under notification, Contravention of notification provisions, Reversal and deposit of cenvat credit, Acceptance of claim by Tribunal, Applicability of judgments, Substantial question of law, Bona fide belief of the assessee, Entitlement to benefit of Notification, Reversal of credit after utilization, Judgment of Allahabad High Court, Judgment of Gujarat High Court.

Analysis:

The appeal concerned the claim of cenvat credit by the respondent assessee under Notification No. 1/2006-ST for providing Erection, Commissioning, and Installation Service. The issue arose when it was observed that the respondent had availed cenvat credit under the Cenvat Credit Rules, 2004, making them ineligible for abatement under the said notification. A show cause notice was issued for short payment of service tax, leading to the deposit of the cenvat credit amount along with interest by the assessee.

The Adjudicating Authority and Commissioner of Central Excise (Appeals) held that the claim of the assessee was questionable, and the deposit was made only after the wrong claim was brought to light by the Audit Party. However, the Tribunal accepted the contention of the assessee, considering the reversal of credit and deposit as evidence of entitlement to the benefit of the Notification. The Tribunal found that the respondent had acted under a bona fide belief and allowed the appeal.

The appellant contended that the Tribunal should not have accepted the claim based on the reversal and deposit of the credit, as both the Adjudicating Authority and CCE(A) had found the claim to be wrongly availed. The appellant argued that the Tribunal should not grant benefit for a wrong done, citing various judgments in support of their position.

In response, the counsel for the respondent argued that the assessee had acted in good faith, promptly depositing the cenvat credit upon realizing the inadmissibility of the claim. The counsel relied on judgments supporting the view that reversal of credit after utilization and deposit should entitle the assessee to the benefit.

Upon review, the High Court upheld the Tribunal's order, finding no grounds for interference. The Court considered the factual findings and evidence on record, concluding that no substantial question of law emerged from the impugned order. The Court referenced judgments from the Allahabad High Court and Gujarat High Court, supporting the view that reversal of credit post-utilization should not bar entitlement to benefits under the Notification. The Court dismissed the appeal, affirming the Tribunal's decision in favor of the respondent.