2018 (5) TMI 1713 - AT - Service Tax

CENVAT credit - invoking extended period for demand - common inputs consumed in exempted goods and reversal of credit attributable to inputs consumed in exempted goods - Rule 6(3A) of Cenvat Credit Rules, 2004 - Different view of second audit party - Held that - It is on record and undisputed that records of appellant were checked by audit party - the audit of the appellant s units, was under taken regularly and no contravention was noticed, hence different view of the second audit party could not claim suppression of facts for invoking extended period for demand. The judgement of Hon ble High Court of Karnataka in the MTR Foods Limited 2012 (10) TMI 165 - KARNATAKA HIGH COURT , is squarely applicable to the facts of the case, where it was held that in the returns it is clearly mentioned that they availed credit under the aforesaid rules. The audit partly accepted the same. It is only in the second audit that they noticed the mistake and initiated proceedings. In the light of the aforesaid facts none of the other conditions prescribed in the Proviso exists in this case to extend the period of limitation of 5 years The SCN dated 28.03.2016, is wrongly invoking extended period for demand hence, impugned order is liable to be set aside on limitation - Appeal allowed on limitation.

Summary

Issues involved:
1. Availment of Cenvat Credit
2. Reversal of credit attributable to inputs consumed in exempted goods
3. Limitation for demand

Detailed analysis:
1. Availment of Cenvat Credit:
The appellant had centralized registration for various services and split their input services into three categories for the years 2011-12 to 2013-14. The appellant adopted incorrect values for elements "G" and "P" in the formula prescribed in Rule 6(3A)(c)(iii), resulting in short-reversal/excess availment of credit. A show cause notice was issued, raising demand proposals, which were confirmed by the lower authority. The appellant contested the order before the first appellate authority, which upheld the demands with interest and penalties. The issue revolved around the correct availment of Cenvat Credit during the mentioned period.

2. Reversal of credit attributable to inputs consumed in exempted goods:
The demand for recovery of excess credit was made under Rule 14 CCR 2004, along with interest and penalties under Rule 15 read with Sec 78. The lower authority confirmed the demand, citing incorrect adoption of multiplication factors "G" and "P" in the rules. The malfeasance of the appellant was deemed to warrant the penalties imposed. The appellant argued against the order on merits and limitation, citing judgments from the Hon'ble High Court of Karnataka and Tribunal decisions. The issue involved the reversal of credit attributable to inputs used in exempted goods and the correctness of the penalties imposed.

3. Limitation for demand:
The show cause notice for reversal of Cenvat Credit was issued on 28.03.2016, invoking the extended period for demand under Rule 6(3A) of Cenvat Credit Rules, 2004. The appellant argued that the second audit party's different view could not claim suppression of facts for invoking the extended period for demand. The appellant relied on the judgment of the Hon'ble High Court of Karnataka and Tribunal decisions, asserting that the show cause notice wrongly invoked the extended period for demand. The appellate authority set aside the impugned order on limitation grounds, allowing the appeal on limitation.

In conclusion, the judgment addressed the issues of correct availment of Cenvat Credit, reversal of credit for exempted goods, and the limitation for demand, ultimately setting aside the impugned order on limitation grounds.