2009 (2) TMI 148 - AT - Service Tax

Penalties - Service Tax credit / Cenvat Credit on the Service Tax paid by them for rendering the output service such as erection of poles, installation and commissioning and on outward transportation The prayer of the appellants at present is for setting aside the penalties - appellants availed the credit on a bona fide belief - The appellants appear to be under the impression that they could avail CENVAT credit of the Service Tax paid mistakenly, once they had come to know that they were not at all liable to pay the said Service Tax - no malafide intention on the part of the appellants - the appellants are separately challenging the levy - adjudication levies in the present case have already been discharged along with interest - In view of these factors penalties set aside.

Summary

Issues:
1. Availment of Service Tax credit on erection, installation, and commissioning services.
2. Availment of Service Tax credit on outward transportation.
3. Imposition of penalty under Rule 15 of the CENVAT Credit Rules, 2004.

Analysis:

Issue 1: Availment of Service Tax credit on erection, installation, and commissioning services
The appellants, engaged in manufacturing PCC and RCC Poles, also provided services of erection and installation of such poles. They availed Service Tax credit on services like erection, installation, and commissioning, which the Revenue contended was wrongly done. The Commissioner (Appeals) upheld the disallowance of credit on these services, stating that only the receiver of the service is entitled to avail the credit of Service Tax. The appellants, represented by a consultant, argued that they had a bona fide belief in availing the credit and had paid the adjudication levies. The Tribunal found that the appellants had paid the adjudication levies on a mistaken belief and set aside the penalties, considering the absence of malafide intent.

Issue 2: Availment of Service Tax credit on outward transportation
Regarding the availing of credit on outward transportation, the Commissioner (Appeals) held that the appellants could not take credit for the tax paid on outward transportation as the charges were borne by someone else, and it was not an input service for them. The Tribunal concurred with this view and noted that the transportation charges and tax incidence were not borne by the appellants. As a result, the penalties imposed on this ground were set aside.

Issue 3: Imposition of penalty under Rule 15 of the CENVAT Credit Rules, 2004
The appellants challenged the imposition of penalties under Rule 15 of the CENVAT Credit Rules, 2004, arguing that they had paid the adjudication levies on a bona fide belief and had no malafide intent. The Tribunal observed that the appellants had already paid the adjudication levies and interest. Considering the circumstances and the absence of malafide intent, the Tribunal found no justification for imposing penalties and set them aside, disposing of the appeal in favor of the appellants.

In conclusion, the Tribunal found that the appellants had acted in good faith while availing the Service Tax credit and had paid the adjudication levies promptly. The penalties imposed were set aside due to the absence of malafide intent and the appellants' separate challenge to the levies.