2016 (11) TMI 573 - AT - Central Excise

CENVAT credit - services used in construction - input service - Rule 2(l) of CENVAT Credit Rules 2004 - Held that - the issue is covered by the decision of Hon ble Gujarat High Court in the case of Gujarat Heavy Chemicals Ltd 2011 (5) TMI 132 - GUJARAT HIGH COURT and in the case of Ultratech Cement Ltd 2014 (5) TMI 540 - GUJARAT HIGH COURT . Therefore the Appellants are not eligible to CENVAT Credit of various services used in the construction and maintenance of employees quarters. Imposition of penalty u/r 15(2) of CENVAT Credit Rules 2004 - Held that - the Appellant under the bonafide belief had availed CENVAT Credit on the services and the demand is issued for the normal period of limitation. In absence of proposal for penalty under other penal provisions in my opinion the penalty under Rule 15(2) of CENVAT Credit Rules 2004 read with Section 11AC of Central Excise Act 1944 is un-tenable in law and accordingly set aside. Appeal disposed off - decided partly in favor of appellant.

Summary

Issues:
- Eligibility of CENVAT Credit on services used in construction of residential flats
- Imposition of penalty under Rule 15(2) of CENVAT Credit Rules 2004

Analysis:

Issue 1: Eligibility of CENVAT Credit on services used in construction of residential flats
The appeal was filed against the order passed by the Commissioner (Appeals) alleging that the CENVAT Credit availed on services used in the construction of residential flats outside the factory premises was not eligible as per Rule 2(l) of CENVAT Credit Rules 2004. The Appellant argued that the construction of residential flats for employees had a nexus with the manufacturing business, making the CENVAT Credit admissible. The Appellant cited judgments by the Hon'ble Andhra Pradesh High Court and a Tribunal order in support of their argument. However, the Tribunal found that the issue was covered by judgments of the Hon'ble Gujarat High Court, which held such services inadmissible for CENVAT Credit. Consequently, the Tribunal ruled that the Appellants were not eligible for CENVAT Credit on services used in the construction and maintenance of employees' quarters.

Issue 2: Imposition of penalty under Rule 15(2) of CENVAT Credit Rules 2004
The Appellant contended that the penalty imposed under Rule 15(2) of CENVAT Credit Rules 2004, read with Section 11AC of the Central Excise Act, 1944, was unwarranted. The Appellant argued that since the demand was issued within the normal limitation period and considering the judgments of other High Courts allowing CENVAT Credit on services used in residential colonies, no penalty should be imposed. The Tribunal acknowledged the Appellant's argument, stating that the penalty was unjustified as the Appellant had availed the credit under a bona fide belief. The Tribunal set aside the penalty under Rule 15(2) of CENVAT Credit Rules 2004, considering it untenable in law. The impugned order was modified accordingly, and the appeal was partly allowed, specifically regarding the penalty imposed.

In conclusion, the Tribunal ruled that the Appellants were not eligible for CENVAT Credit on services used in the construction of residential flats, as per the judgments of the Hon'ble Gujarat High Court. The penalty imposed under Rule 15(2) of CENVAT Credit Rules 2004 was deemed unwarranted and was set aside by the Tribunal.