2017 (9) TMI 75 - AT - Central Excise

Interest - penalty - reversal of CENVAT credit on being pointed out - manpower supply services - Held that - decision in the case of Ind-Swift Laboratories Ltd. 2011 (2) TMI 6 - Supreme Court , relied upon where it was held that if the Cenvat credit availed by the assessee wrongly but same has been reversed before utilization of the same, no interest is payable by the assessee. Penalty - Held that - appellant is a Central Public Sector Undertaking, no charge of allegation of suppression can be made against the appellant - penalty set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues involved: Dispute over Cenvat credit availed on certain input services, payment of interest, imposition of penalty, reversal of wrongly taken Cenvat credit, charge of suppression of facts, leviability of interest on Cenvat credit taken but reversed without utilization, justification for penalty on a public sector undertaking.

Analysis:

1. Dispute over Cenvat credit availed on certain input services:
The appellant, engaged in manufacturing electrical goods, availed Cenvat credit under Cenvat Credit Rules, 2004, for input services provided by Manpower Supply Agencies in the township/hospitals and factory. The Department contended that the appellant was not entitled to credit for service tax paid for services in the township/hospital. The appellant reversed the credit amount but was issued a show cause notice for interest and penalty. The Ld. Commissioner ordered payment of interest and imposed a penalty, leading to the appeal.

2. Payment of interest:
The appellant argued that since the wrongly taken Cenvat credit was never utilized and had been reversed, no interest should be payable. Citing legal interpretations, the appellant sought to set aside the penalty. The Department, however, claimed that the reversal of credit was done after detection by the department, establishing a charge of suppression of facts against the appellant. The Tribunal examined various decisions and held that interest was not payable as the credit was reversed before utilization, aligning with precedents set by the Hon’ble Apex Court and High Court.

3. Imposition of penalty:
The issue of leviability of interest on Cenvat credit wrongly availed but reversed without utilization had been subject to litigation with differing views. Considering the appellant's status as a Central Public Sector Undertaking and the evolving legal landscape on the matter, the Tribunal set aside the penalty imposed by the Adjudicating Authority, as no suppression of facts could be attributed to the appellant. The Tribunal allowed the appeal, emphasizing the appellant's compliance with the reversal of credit before utilization.

In conclusion, the Tribunal ruled in favor of the appellant, holding that no interest was payable on the reversed Cenvat credit and setting aside the penalty due to the evolving legal interpretations and the appellant's status as a Central Public Sector Undertaking, where no suppression of facts was established.