2017 (2) TMI 298 - AT - Central Excise

Interest - penalty - Reversal of CENVAT credit - service tax paid for inspection of goods - Held that - The issue in question is no longer res integra and has been settled by a number of High Court decisions including that of Billforge Pvt. Ltd. 2011 (4) TMI 969 - KARNATAKA HIGH COURT , where it was held that mere taking of cenvat credit facilities is not at all sufficient for claiming interest as well as penalty. I have no hesitation in holding that no interest liability will arise in the present case also and, consequently, there cannot be any imposition of penalty. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Availment of input service credit for inspection services
- Disallowance of cenvat credit by the department
- Demand of interest and imposition of penalty

Analysis:
1. Availment of input service credit for inspection services:
The appellant engaged independent manufacturers to manufacture components and used independent inspection agencies to check the quality of goods. The appellant availed input service credit for service tax incurred for such inspection. The department contended that this availment was ineligible under the Cenvat Credit Rules, 2004.

2. Disallowance of cenvat credit by the department:
The original authority and the Commissioner (Appeals) upheld the department's view of disallowing the cenvat credit. The appellant, during the hearing, acknowledged the reversal of the disputed credit amounts and expressed no intention to contest the disallowance of the credit. The appeal was focused on challenging the demand for interest and imposition of penalty.

3. Demand of interest and imposition of penalty:
The appellant argued that interest liability should not apply in their case, citing a precedent from the Hon’ble High Court of Madras. The appellant emphasized that they had reversed the credit and had not utilized it, which, according to legal precedents, is insufficient for claiming interest and penalty. On the other hand, the respondent contended that the law prior to a specific amendment was clear, and wrong taking of credit, even if not utilized, would attract interest liability under the relevant provisions.

4. Judgment and Precedents:
The Tribunal considered various High Court decisions, including the Billforge case, which established that mere taking of cenvat credit without utilization does not warrant interest or penalty. The Tribunal also referred to judgments from different High Courts and reiterated the principle that interest liability does not arise if credit is not utilized. Following the principle of stare decisis, the Tribunal allowed the appeal, ruling that no interest liability or penalty would arise in the present case. The Tribunal upheld the reversal of cenvat credit but dismissed any imposition of interest or penalty.