2018 (9) TMI 1356 - AT - Central Excise

Penalty - CENVAT Credit reverses on being pointed out - bonafide intent - Held that - The fact of availment of credit was also dully reflected by the appellant in their ER-1 report. In fact the fact of availment of credit has come to the notice of the Revenue only from the scrutiny of ER-1 return itself. As such it cannot be said that the credit was availed by appellant with any mala fide. The issue being a bona fide issue, the invocation of penal provisions against the assessee cannot be appreciated - penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Challenge to penalty imposed on appellant for availing service tax credit before the eligible period.

Analysis:
The case involved a challenge to a penalty imposed on the appellant for availing service tax credit before the eligible period. The appellants, who were manufacturers of Telephones, had availed Cenvat credit of service tax paid on various input services. The Revenue found that they had availed Service Tax on Banking and Financial Services before the eligible period, leading to the objection raised by the Revenue. The appellants accepted the objection and immediately reversed the credit. Subsequently, proceedings were initiated against them, resulting in an order confirming the demand, interest, and a penalty. On appeal, the penalty was reduced by the Commissioner (Appeals) to ?50,000 in accordance with Rule 15(1) of the Cenvat Credit Rules.

The main contention in the appeal was regarding the penalty of ?50,000. The appellant argued that they acted in good faith by reversing the credit promptly upon being informed by the Revenue. They asserted that no mala fide intention could be attributed to them, and thus, penal provisions should not be invoked against them. The Tribunal noted that although the service tax credit was available to the appellant from 10.09.2004, they had inadvertently availed it for the period from 01.01.2003 to 09.09.2004, which was reflected in their statutory records and ER-1 report. The Revenue only became aware of this through the scrutiny of the ER-1 return. Given the inadvertent nature of the issue and the appellant's immediate corrective action upon discovery, the Tribunal held that penal provisions should not apply in this case. Consequently, while confirming the demand and interest, the penalty imposed on the appellant was set aside, and the appeal was allowed on that ground.