2018 (3) TMI 757 - AT - Central Excise

Penalty - interest - Reversal of CENVAT credit - Held that - the appellant had reversed CENVAT credit but it was held by the first appellate authority that no documentary evidence to that effect had been provided. The original authority, in order-in-original, acknowledges the reversal of CENVAT credit and, therefore, renders the proceedings for recovery to be a non-starter - penalty not warranted. Interest - Held that - interest liability is modified to such extent that the utilization of CENVAT credit before the date of reversal did not fall below the amount so reversed and the interest liability restricted only to such deficits as are evidenced in the CENVAT credit account - Subject to any interest liability remaining consequent upon such ascertainment the impugned order is set aside except to the extent that the amount of CENVAT credit wrongly taken has been reversed and appropriated. Appeal disposed off.

Summary

Issues:
Appeal against disallowed CENVAT credit for services utilized in setting up a factory. Interpretation of 'input service' post-amendment. Reversal of CENVAT credit and liability to interest.

Analysis:
The appellant, M/s Maharashtra Seamless Limited, appealed against an order modifying disallowed credit to ?10,10,843 by the Commissioner of Central Excise (Appeals - II), Mumbai. The contention was that post-amendment to the definition of 'input service,' eligibility to CENVAT credit was denied for services used in setting up a factory. The appellant relied on legal precedents such as a Supreme Court decision and decisions of the High Court and Tribunal to support their claim.

The lower authorities considered the legal precedents and concluded that post the change in the definition of 'input service,' the specific services for which CENVAT credit was claimed were not eligible. The appellant had reversed the CENVAT credit, which, as per a Supreme Court decision, would negate the duty recovery liability. However, there was a discrepancy in the computation of interest, as the interest liability was upheld despite an amendment ruling out interest liability if sufficient unutilized credit was available.

During the hearing, the Authorized Representative supported the lower authorities' findings, stating that the appellant was not entitled to leniency. It was noted that although the appellant had reversed the CENVAT credit, the first appellate authority found no documentary evidence to support this reversal. The penalty imposed on the appellant was deemed baseless in law and was set aside based on legal precedents.

The remaining issue revolved around the liability to interest. The first appellate authority upheld the interest liability without considering the legal position that interest was not applicable if there was sufficient credit balance in the CENVAT account. The interest liability was modified to only apply to deficits evidenced in the CENVAT credit account, restricting it to the extent of any remaining interest liability. The impugned order was set aside except for the reversed CENVAT credit amount.

The appeal was disposed of accordingly, with the cross-objection also being resolved during the judgment.