2016 (9) TMI 182 - AT - Central Excise

Cenvat credit - service tax paid on input services of technology development received - project didn t yield any result - service provider has returned back the same money as unsecured loan - mention of third party MERCK in the agreement made between the appellant and the service provider - Held that - considering the facts of repayment by the service provider of service charges of ₹ 6,61,80,000/- as unsecured loan to the appellant; mention of a third party namely MERCK in the agreement; and the fact on record that this project of technology development for liquid filled hard gelatine capsule didn t give any result makes this full transaction of input service a suspect and put it in the category of sham transaction . Consequently, Revenue has rightly confirmed the demand of ₹ 6,61,80,000/- (alongwith interest) relating to cenvat credit wrongly availed by the appellant. Period of limitation - notice given by the Revenue was issued in January 2013 for the credit availed during March, 2010 - it is found that there has been wilful mis-statement and suppression on the part of the appellant with intention to wrongly claim the ineligible credit and Revenue could notice this fact only through their audit. Therefore, the Revenue has rightly confirmed the demand and imposed equivalent penalty on the appellant. - Decided against the appellant

Summary

Issues:
- Denial and recovery of cenvat credit on input service
- Imposition of penalty on the appellant
- Time-barred demand notice

Analysis:
1. Denial and recovery of cenvat credit on input service:
The case involved M/s Piramal Healthcare Limited appealing against the denial and recovery of cenvat credit amounting to ?61,80,000 on input services for technology development. The appellant argued that the service received was in the nature of R&D activity and thus qualified as an input service under Rule 2(l) of the Cenvat Credit Rules, 2004. However, the Revenue contended that the input services were not used in the manufacture of the final product as the project did not yield any result, and the service provider returned the payment as an unsecured loan. The Tribunal found the transaction suspicious due to the repayment as an unsecured loan, the mention of a third party in the agreement, and the unsuccessful project outcome, leading to the conclusion that the demand for recovery of the cenvat credit was justified.

2. Imposition of penalty on the appellant:
The appellant also argued that the Revenue's demand was time-barred, as the notice was issued in January 2013 for the credit availed in March 2010. However, the Tribunal noted that there was willful misstatement and suppression on the part of the appellant to wrongly claim the ineligible credit, which the Revenue discovered through an audit. In light of these findings, the Tribunal upheld the imposition of an equivalent penalty on the appellant, dismissing the appellant's argument based on case laws that were deemed irrelevant in this context.

3. Time-barred demand notice:
Regarding the plea of the demand notice being time-barred, the Tribunal found that the appellant's intentional misstatement and suppression of facts to claim ineligible credit justified the Revenue's actions. The Tribunal concluded that the demand notice issued by the Revenue in January 2013 for the credit availed in March 2010 was valid, given the circumstances of the case. Consequently, the Tribunal dismissed the appeal, affirming the Revenue's decision to deny the cenvat credit and impose the penalty on the appellant.

In conclusion, the Tribunal upheld the denial and recovery of cenvat credit, the imposition of the penalty on the appellant, and deemed the demand notice by the Revenue as valid, ultimately dismissing the appeal on 19.08.2016.