2017 (4) TMI 990 - AT - Service Tax

CENVAT credit - capital goods - 100% credit availed in the same financial year - Held that - the appellant does not have the proof that they have reversed the irregularly availed credit - the unutilised credit of 50% is shown as credit availed by appellant and the period is prior to 1.4.2011. Therefore, the demand of interest is justified. However, as the appellant was eligible to take credit of the balance 50% in the subsequent year, no penalty can be imposed - appeal allowed - decided partly in favor of appellant.

Summary

Issues:
Confirmation of interest and penalty for irregular credit on capital goods by availing 100% credit in the same financial year.

Analysis:
The appellant filed an appeal against the confirmation of interest and penalty for allegedly availing irregular credit on capital goods by taking 100% credit in the same financial year. The audit party observed that the appellant had availed 100% CENVAT credit on capital goods during a specific period. A show cause notice was issued, proposing a demand of interest and penalty. The adjudicating authority confirmed the interest demand and imposed a penalty under Rule 15(1) of CCR, 2004. The Commissioner (Appeals) later reduced the penalty but upheld the interest demand, leading to the current appeal.

In the appeal, the appellant argued that although they took 100% credit on capital goods in the same financial year, they utilized only 50% of it. They contended that the remaining credit remained unutilized, making the interest demand and penalty unjustified. The appellant cited the judgment in the case of CCE, Madurai Vs. Strategic Engineering (P) Ltd. and the Tribunal's decision in the case of Rastriya Ispat Nigam Limited Vs CCE, CUS & ST., Visakhapatnam to support their argument.

The department, represented by the Ld. AR, reiterated the findings of the impugned order, stating that although the appellant utilized only 50% of the credit, taking the entire 100% credit in the same financial year violated the CENVAT Credit Rules 2004.

After hearing both sides, the Tribunal held that although the appellant had taken the full credit, utilizing only 50% of it does not automatically attract interest or penalty. The Tribunal distinguished the present case from the judgments cited by the appellant, as in those cases, the irregularly availed credit was reversed by the assessee. Since the appellant did not provide proof of reversing the irregularly availed credit, the Tribunal found the demand of interest justified. However, considering that the appellant was eligible to utilize the remaining 50% credit in the subsequent year, the Tribunal set aside the imposed penalties. The impugned order was modified to remove the penalties while maintaining the interest demand. As a result, the appeal was partly allowed in favor of the appellant.