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2022 (11) TMI 561 - AT - Service TaxDemand of interest and penalty - reversal of CENVAT credit prior to issuance of SCN - HELD THAT - Since the basic fact is that the respondent has reversed the entire Cenvat credit taken by them even prior to issuance of the notice without utilizing the same, there are no merit in the appeal filed by the Revenue. This appeal basically does not challenge the dropping of demand by disallowing the abatement claimed, but seeks to ask for interest on the Cenvat credit wrongly taken by the respondent and for imposition of penalty on the respondent. The Principal Commissioner has in para 15 of the impugned order very categorically discussed the issue and has recorded his finding that not a single penny of the Cenvat credit taken was utilized before its reversal. Accordingly he has held that no interest was to be demanded. Just by taking the Cenvat credit in its book of account without utilizing the same, respondent has not caused prejudice to the Revenue. Taking note of the Hon ble Supreme Court decision in the case of UOI AND ORS. VERSUS IND-SWIFT LABORATORIES LTD. 2011 (2) TMI 6 - SUPREME COURT and Rule 14 of the Cenvat Credit Rules the provisions of which were amended to change the words taken or utilized , there cannot be any demand for the interest. As the entire amount of Cenvat credit was reversed prior to issuance of show cause notice, penalty under Section 73(3) of the Finance Act, 1994 is waived off. Appeal dismissed.
Issues Involved:
1. Wrongful availment of Cenvat credit prior to 01.07.2010. 2. Simultaneous availing of abatement and Cenvat credit from 01.07.2010 to 30.06.2012. 3. Failure to compute and pay correct service tax. 4. Failure to file correct returns. 5. Demand for interest on inadmissible Cenvat credit. 6. Imposition of penalties under various sections of the Finance Act, 1994. Detailed Analysis: 1. Wrongful Availment of Cenvat Credit Prior to 01.07.2010: The Principal Commissioner noted that the respondent availed Cenvat credit amounting to Rs.3,39,72,291/- prior to 01.07.2010, which was inadmissible. This credit was disclosed in the relevant ST-3 return. The department alleged that this credit was availed wrongly. However, the respondent reversed the entire credit voluntarily before the issuance of the show cause notice. 2. Simultaneous Availing of Abatement and Cenvat Credit from 01.07.2010 to 30.06.2012: The respondent availed abatement of 75% on the gross value of services under Notification No.1/2006-ST, while also availing Cenvat credit on inputs and input services amounting to Rs.1,15,67,014/-. The department contended that the benefit of abatement was available only if no Cenvat credit was availed. The respondent reversed the entire Cenvat credit taken during this period and filed a revised return. 3. Failure to Compute and Pay Correct Service Tax: The department alleged that the respondent failed to compute and pay the correct service tax as required under Section 68 of the Finance Act, 1994, read with Rule 6 of the Service Tax Rules, 1994. This was due to the simultaneous availing of abatement and Cenvat credit. 4. Failure to File Correct Returns: The respondent was accused of failing to file correct returns in Form ST-3 within the prescribed time limit, as required under Section 70 of the Finance Act, 1994, read with Rule 7 of the Service Tax Rules, 1994. The respondent filed revised returns after reversing the Cenvat credit. 5. Demand for Interest on Inadmissible Cenvat Credit: The Principal Commissioner held that since the respondent reversed the Cenvat credit before its utilization, no interest was payable. This decision was supported by various case laws, including CCE Vs. M/s. Bill Forge and CCE Vs. M/s. Pearl Insulation, which stated that reversal of Cenvat credit before utilization means the credit was not taken, and hence, no interest is payable. 6. Imposition of Penalties: The Principal Commissioner waived off the penalties under Section 73(3) of the Finance Act, 1994, as the entire amount of Cenvat credit was reversed prior to the issuance of the show cause notice. The Revenue's appeal sought to impose penalties and demand interest, but the Tribunal found no merit in this appeal, as the respondent had not utilized the Cenvat credit and had reversed it voluntarily. Conclusion: The Tribunal upheld the Principal Commissioner's order, noting that the respondent had reversed the Cenvat credit before its utilization and had not caused any prejudice to the Revenue. The appeal by the Revenue was dismissed, and no interest or penalties were imposed on the respondent. The Tribunal emphasized that mere entry of Cenvat credit in the books without utilization does not warrant interest or penalties.
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