2017 (5) TMI 896 - AT - Service Tax

CENVAT credit - clearance of capital goods as such to different units - goods not received back within 180 days - Rule 3 (5) of CCR, 2004 - Held that - in the absence of any allegation of diversion of capital goods for other than intended purpose or their clearance to third party, the Revenue is not justified in denying credit on such capital goods which are admittedly installed and utilized for providing taxable output service - Considering the nature of output service provided by the appellant, all over the State of Rajasthan, it is not correct to presume that the credit availed capital goods should be installed/available in a single registered premises - demand of credit set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Demand of Cenvat credit from the appellant for not bringing back capital goods within 180 days.
- Allegation of clearing capital goods without returning them to registered premises.
- Recovery of the demanded amount and penalty imposed under Rule 15 of Cenvat Credit Rules, 2004.

Analysis:
1. The appellant, engaged in providing telecommunication services, availed duty credit on capital goods. The dispute arose when the Commissioner demanded Cenvat credit of a significant amount from the appellant for allegedly clearing the capital goods without returning them within 180 days, violating Rule 3 (5) of Cenvat Credit Rules, 2004. The Commissioner ordered the recovery of the amount and imposed a penalty under Rule 15 of the said rules.

2. The appellant argued that they were duly registered with the Service Tax Department, discharging service tax on time, and filing returns. They contended that the telecom equipment installed at various locations in Rajasthan were part of their output service premises, covered under the registration application. The appellant's registration in the name of BSNL, CMTS, Jaipur, encompassed all places where the capital goods were installed for providing telecommunication services.

3. The Authorized Representative reiterated the findings, emphasizing that as per Cenvat Credit Rules, capital goods should be used in the registered premises. Any removal without reversing the credit would violate Rule 3 (5) of the rules.

4. The Tribunal found no dispute regarding the appellant's eligibility for Cenvat credit on capital goods. The issue centered on the clearance of these goods to various premises for installation, leading to the demand for recovery. The Tribunal held that the Revenue's objection was technical, as there was no evidence of availing credit on ineligible goods or diversion to a third party. The Tribunal emphasized that the Revenue's presumption that all goods were received in a single registered premises and then cleared to unregistered premises lacked legal support.

5. Referring to previous judgments, the Tribunal ruled in favor of the appellant, stating that there was no violation of Rule 3 (5) of Cenvat Credit Rules, 2004. Consequently, the impugned order was set aside, and the appeal was allowed.

This detailed analysis highlights the key arguments, legal interpretations, and the Tribunal's decision regarding the demand for Cenvat credit and the alleged violation of rules by the appellant.