2018 (9) TMI 1365 - AT - Service Tax

CENVAT Credit - appellant had not paid the value of the services to the service providers - contravention of Rule 4(7) of Cenvat Credit Rules, 2004 - Revenue s sole ground is that instead of taking the credit during the period involved in the appeal, the same was available to the assessee subsequently i.e. after making payments for the services. Held that - It is seen that during intervening period the credit availed remained as a paper entry only and was not utilized by the assessee. Though in such a case even the interest was not required to be paid in terms of the Hon ble Karnataka High Court decision in the case of Bill Forge Pvt. Ltd. vs. CCE & ST, LTU, Bangalore 2011 (4) TMI 969 - KARNATAKA HIGH COURT . Wrong availment of ₹ 1.28 lakhs - Held that - There could be a bona fide belief on the part of the assessee that inasmuch as the services stand availed by their sister concern only, they were in a position to avail the credit. While confirming the demand along with confirmation of interest, the penalty of ₹ 56,74,746/- imposed upon the appellant is set aside. Appeal allowed in part.

Summary

Issues:
1. Availment of Cenvat credit without paying service providers.
2. Availment of credit for services utilized by sister unit.
3. Confirmation of demand, interest, and penalty by the Commissioner.
4. Challenge to the imposition of penalty.

Analysis:
1. The appellant, engaged in manufacturing Tor Steel, availed Cenvat credit of ?55,45,996/- without paying service providers, violating Rule 4(7) of Cenvat Credit Rules, 2004. Upon audit objection, the appellant acknowledged the error, reversed the credit, and paid interest. The Commissioner confirmed the reversal entries, interest, and imposed a penalty of ?56,74,746/- under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944.

2. An additional amount of ?1,28,750/- was availed by the appellant for services used by their sister unit. The appellant accepted the error, reversed the credit, and paid interest. The penalty was imposed concerning this amount as well.

3. The appellant challenged only the penalty imposition, arguing that the premature availment of credit was rectified after payment to service providers. They contended that the credit remained unused during the period in question. The appellant's stance was that no mala fide intention existed to warrant a penalty.

4. The Tribunal found that the appellant rectified the premature credit availment and reversed the amount with interest. The Tribunal noted that the appellant's sister unit could have utilized the credit, leading to a revenue-neutral situation. Considering the circumstances, the Tribunal held that no penalty was justified for both the premature credit availment and the amount related to the sister unit.

5. Consequently, the Tribunal confirmed the demand and interest but set aside the penalty of ?56,74,746/- imposed on the appellant, disposing of the appeal accordingly.