2018 (8) TMI 559 - AT - Service Tax

CENVAT Credit - common input services, which had been used in or in relation to providing of taxable service as well as exempted service - non-maintenance of separate records - Rule 6(3)(i) of the Cenvat Credit Rules, 2004 - Held that - Admittedly appellant have reversed the Cenvat credit availed in respect of the common input services - As per the Hon‟ble Karnataka High Court decision in the case of CCE, Mangalore vs. Kudremukh Iron & Steel Company Ltd. 2011 (4) TMI 950 - KARNATAKA HIGH COURT , the reversal of the credit relatable to the exempted final services would amount to a situation as if no credit was availed. If that be so the question of payment of any amounts on the final exempted service does not arise at all - thus, only the Cenvat credit in respect of input services relatable to their uses in the exempted services is required to be reversed on proportionate basis - matter remanded for calculation of the credit to be reversed by the assessee. Penalty - Held that - There being a bona fide issue of interpretation of legal provisions as also for appreciating the fact that the credit was availed by reflecting the same in the statutory records, the penalty is set aside. Appeal allowed by way of remand.

Summary

Issues:
1. Taxability of renting of immovable property for residential purposes.
2. Application of Rule 6(3)(i) of the Cenvat Credit Rules, 2004.
3. Interpretation of the judgment of the Hon'ble Karnataka High Court.
4. Calculation of Cenvat credit to be reversed.
5. Imposition of penalty under Rule 15(3) of the Cenvat Credit Rules.

Issue 1: Taxability of renting of immovable property for residential purposes
The appellant, a club, provided various taxable services to its members and also leased residential premises for rent. Renting out residential property for residential purposes was not a taxable service during the disputed period. However, it fell under the definition of "exempted service" under Rule 2(e) of the Cenvat Credit Rules, 2004. The dispute arose as the appellant availed Cenvat credit for common input services used in both taxable and exempted services without maintaining separate accounts. The department sought recovery under Rule 6(3)(i) of an amount equal to a percentage of the rental amount received.

Issue 2: Application of Rule 6(3)(i) of the Cenvat Credit Rules, 2004
The appellant argued that they had reversed the proportionate Cenvat credit in respect of input services attributable to exempted services before the show cause notice was issued. They contended that the option of paying a percentage of the value of exempted services under Rule 6(3)(i) could not be enforced. Citing a judgment of the Karnataka High Court, they emphasized that when common inputs were used for dutiable and exempted products, and the credit for exempted products was reversed, no additional payment was required. The Tribunal agreed, stating that the reversal of credit related to exempted services nullified the need for any additional payment.

Issue 3: Interpretation of the judgment of the Hon'ble Karnataka High Court
The Tribunal referenced the Karnataka High Court's decision, emphasizing that once the credit related to exempted services was reversed, it was as if no credit was availed. Therefore, the question of payment on exempted services did not arise. This interpretation guided the Tribunal's decision to set aside the demand for additional payment under Rule 6(3)(i).

Issue 4: Calculation of Cenvat credit to be reversed
The appellant contended that they had reversed the entire credit availed for inputs used in both dutiable and exempted services. They argued that the reversal should only apply proportionately to input services related to exempted services. The Tribunal agreed, directing the matter to be remanded for the calculation of credit to be reversed specifically for exempted services.

Issue 5: Imposition of penalty under Rule 15(3) of the Cenvat Credit Rules
The Tribunal, considering the bona fide interpretation issue and the appellant's compliance with reflecting the credit in statutory records, set aside the penalty imposed. The Tribunal acknowledged the genuine interpretation issue and the appellant's adherence to record-keeping requirements, leading to the decision to waive the penalty.

In conclusion, the Tribunal ruled in favor of the appellant, emphasizing the need for proportionate reversal of Cenvat credit related to exempted services and setting aside the demand for additional payment. The penalty imposed was also revoked, considering the genuine interpretation issue and compliance with statutory requirements.