2019 (2) TMI 71 - AT - Central Excise

Demand of Interest and penalty for delayed payment - wrongly availed credit was reversed immediately on being pointed out - Held that - This very Chennai Bench of the CESTAT in the case of M/s. Lenovo India Pvt. Ltd. Vs. C.C.E., Puducherry 2018 (7) TMI 243 - CESTAT CHENNAI has held that there was no liability towards interest or penalty. The interest and penalty cannot be sustained - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Availment of CENVAT Credit on input services for payment of duty on finished goods.
2. Utilization of exemption for finished goods without payment of duty.
3. Demand of interest under Rule 14 of CENVAT Credit Rules, 2004.
4. Imposition of penalty for non-payment of interest.
5. Comparison with a similar case for liability towards interest and penalty.

Analysis:
1. The appellant availed CENVAT Credit of service tax on input services for duty payment on finished goods cleared for home consumption under Notification No. 29/2004-CE. Simultaneously, they cleared final products without duty payment under Notification No. 30/2014-CE. As separate accounts were not maintained for dutiable and exempted goods, they were required to pay 5% of the value of exempted goods or an amount equivalent to the CENVAT Credit used in manufacturing exempted goods. The appellant reversed the CENVAT Credit amount for input services used in manufacturing exempted goods but did not pay interest for delayed payment.

2. A Show Cause Notice was issued proposing interest demand under Rule 14 of CENVAT Credit Rules, 2004, along with a penalty. The adjudicating authority confirmed the demand and penalty, which was upheld by the Commissioner (Appeals). The appellant then filed an appeal against this order.

3. During the appeal hearing, the appellant's advocate referred to a similar case before the Chennai Bench of CESTAT where it was held that availing CENVAT Credit wrongly and reversing it subsequently without utilization does not attract interest or penalty. The advocate argued that a subsequent amendment clarified that interest and penalty are applicable only when the credit is taken and utilized. The Tribunal found this argument valid and set aside the demand for interest and penalty, allowing the appeal.

4. The Tribunal noted that the Revenue could not distinguish the above case or provide contrary decisions. Consequently, based on the precedent and lack of contradictory evidence, the Tribunal concluded that the interest and penalty were not sustainable. The demand and the impugned order were set aside, and the appeal by the assessee was allowed.