2021 (8) TMI 170 - AT - Central Excise

Levy of penalty - Reversal of CENVAT Credit - goods sent for job work from factory during the months of May 2007 and June 2007, not received back into the factory for further manufacture, within the stipulated period of 180 days - demand alongwith interest and penalty - HELD THAT - It is undisputed that the appellant has reversed the entire cenvat credit of ₹ 38,87,316/- prior to its utilization and prior to the issuance of show-cause notice. Further it is found that as soon as the audit raised the objection, the appellant who is a Public Sector Undertaking has reversed the cenvat credit prior to its utilization. This issue is no more res integra and has been settled by the Karnataka High Court in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX LARGE TAXPAYER UNIT, BANGALORE VERSUS M/S BILL FORGE PVT LTD, BANGALORE 2011 (4) TMI 969 - KARNATAKA HIGH COURT where it was held that Once the entry was reversed, it is as if that the Cenvat credit was not available. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Irregular availing of cenvat credit for goods sent for job work
- Failure to reverse cenvat credit within stipulated period
- Demand of irregular cenvat credit, interest, and penalty
- Applicability of Rule 14 and Rule 15(2) of Cenvat Credit Rules, 2004
- Legal sustainability of impugned order
- Precedents supporting reversal of cenvat credit prior to utilization
- Allegations of malafide intention and time-barred demand

Analysis:
The appeal was against an order rejecting the appellant's appeal regarding irregular availing of cenvat credit for goods sent for job work. The appellant failed to reverse the cenvat credit within the stipulated period, leading to a demand for irregular cenvat credit, interest under Rule 14, and penalty under Rule 15(2). The appellant contended that they had reversed the cenvat credit prior to utilization and issuance of show-cause notice, citing subsequent amendments to Rule 14 and judicial precedents supporting their stance.

The appellant argued that interest and penalty should not be imposed if wrongly availed credit is reversed before utilization. They relied on decisions by the Karnataka High Court, Madras High Court, and CESTAT Bangalore, which consistently set aside demands for interest and penalties in similar cases. The appellant emphasized the absence of malafide intention, immediate reversal of credit upon objection, and the time-barred nature of the demand based on audit objections.

The respondent reiterated the findings of the impugned order, but the tribunal found that the appellant had indeed reversed the entire cenvat credit before utilization and before the show-cause notice. Citing the Karnataka High Court decision and tribunal precedents, the tribunal held that the impugned order was not sustainable in law. Therefore, the tribunal allowed the appeal, setting aside the impugned order based on the established legal principles and precedents.

In conclusion, the tribunal's decision was in favor of the appellant, emphasizing the legal requirement of reversing cenvat credit before utilization and the precedents supporting this practice. The tribunal found the impugned order unsustainable in law and set it aside, highlighting the importance of following established legal principles and judicial precedents in such matters.