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2017 (12) TMI 822 - AT - Service TaxCENVAT credit - credit on capital goods availed in full, later on reversed - Rule 4(2) of the CCR - Held that - the appellant has proved by way of documentary evidence that they have only taken 50% of the credit during the first year and they have also submitted the reconciliation statement to prove the same - also, the intention behind the provision of Rule 4(2) is not to restrict taking credit but utilisation thereof and in the present case, the appellant has only taken credit and not utilised the same as has been shown by way of documentary evidence. Reliance placed in the case of Bill Forge India Pvt Ltd. 2011 (4) TMI 969 - KARNATAKA HIGH COURT where it has been held that if the credit has been taken wrongly and the same has been reversed, then the assessee is not liable to pay interest and penalty. Appeal allowed - decided in favor of appellant.
Issues:
- Incorrect availing of CENVAT credit on capital goods - Interpretation of Rule 4(2) of the CENVAT Credit Rules, 2004 - Applicability of judicial precedents - Quantification of demand for a specific period - Liability to pay interest and penalty - Benefit of Notification No.18/2012-CE(NT) Analysis: 1. Incorrect availing of CENVAT credit on capital goods: The appellant, a service provider, availed 100% CENVAT credit on capital goods in the first year instead of following the prescribed 50% limit per financial year. The excess credit availed was ?10,89,942, leading to a dispute regarding the correct utilization of credit. 2. Interpretation of Rule 4(2) of the CENVAT Credit Rules, 2004: The main contention was whether the intention behind Rule 4(2) was to restrict the utilization or the availing of credit. The appellant argued that they only availed the credit and not utilized it, citing various judicial precedents to support their interpretation. 3. Applicability of judicial precedents: The appellant relied on decisions such as Bombay Paints Vs. CCE, Madras Cement Ltd. Vs. CCE, and others to support their argument that they were not liable to reverse the CENVAT credit as they had not utilized the excess credit availed. 4. Quantification of demand for a specific period: The appellant contested the quantification of demand for a specific period, claiming that they had only taken 50% credit during that time and provided a reconciliation statement as evidence. 5. Liability to pay interest and penalty: The appellant argued that they were not liable to pay interest as they had not utilized the credit, and the Department did not dispute the eligibility of the credit taken. They cited various decisions to support their stance. 6. Benefit of Notification No.18/2012-CE(NT): The Revenue argued that the benefit of Notification No.18/2012-CE(NT) was not applicable to the appellants as it was operational only from 01/04/2012 and did not have retrospective effect. They contended that the appellant's claim of non-utilization of credit lacked documentary evidence. In the final judgment, the Tribunal found in favor of the appellant, noting that they had only taken 50% of the credit during the first year and had not utilized the excess credit. The Tribunal emphasized that the intention behind Rule 4(2) was about utilization and not just availing credit. Citing precedents like Bill Forge India Pvt Ltd., the Tribunal held that if wrongly taken credit is reversed, the assessee is not liable to pay interest and penalty. Therefore, the impugned order was set aside, and the appeal of the appellant was allowed.
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