2019 (4) TMI 892 - AT - Central Excise

Imposition of Interest and penalty - non-utilization of wrongly availed CENVAT credit - balance in the CENVAT register or not - appellant was registered both under Central Excise and Service Tax - Held that - The appellants have reversed the wrongly availed CENVAT credit on being pointed out by the audit before the issuance of show-cause notice. Further the appellant has filed the ER-1 returns along with the reply to the show-cause notice wherein they have shown sufficient balance in their register till the date of reversal but the same was not considered by both the authorities below and they have only considered ST-3 returns and recorded the finding that the assessee did not have sufficient balance in their CENVAT register. The issue decided in the case of CCE vs. Bill Forge Ltd. 2011 (4) TMI 969 - KARNATAKA HIGH COURT . Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against Commissioner (A) order upholding Order-in-Original except penalty under Rule 7C.

Analysis:
The appellant wrongly availed CENVAT credit on personal consumption services and electricity charges. The total credit availed was ?1,82,448 from April 2010 to March 2015. The appellant reversed the credit but did not pay interest and penalty. A show-cause notice was issued demanding the amount under Rule 14 of CENVAT Credit Rules, 2004. The original authority confirmed the demand, imposed interest, and penalties. The appellant appealed, and the Commissioner (A) upheld the order but dropped the penalty under Rule 7C.

The appellant argued that the impugned order was unsustainable as it wrongly considered the records. They claimed that there was a balance in the CENVAT register, duly verified by the audit team. The appellant contended that since they did not utilize the wrongly availed credit, they should not be liable for interest and penalty. The appellant cited various decisions in support of their arguments.

The AR defended the impugned order, but after considering both parties' submissions and the records, it was found that the appellant had reversed the wrongly availed credit before the show-cause notice. The appellant had shown a sufficient balance in their register, which was not considered by the authorities. The issue had been settled in favor of the assessee by the Karnataka High Court and other Tribunal decisions. Following the established ratio, the impugned order was set aside, and the appeal of the appellant was allowed.

In conclusion, the Tribunal found in favor of the appellant, setting aside the impugned order due to the appellant's timely reversal of wrongly availed credit and the presence of a sufficient balance in their register, as evidenced by records not considered by the authorities. The legal arguments and precedents cited by the appellant supported the decision to relieve them of the interest and penalties imposed.