2018 (8) TMI 997 - AT - Central Excise

CENVAT Credit - credit availed on certain Capital goods, which were subsequently found defective - demand alongwith interest and penalty - Held that - Undisputedly the credit availed by them remained a paper entry and same was not utilized till the date of reversal - Hon ble Karnataka High Court in the case of Commissioner of Central Excise & Service Tax, LTU, Bangalore vs. Bill Forge Pvt. Ltd. 2011 (4) TMI 969 - KARNATAKA HIGH COURT has held that in such a scenario, no interest liability would arise against the assessee where the wrongfully taken credit stand reversed without utilization. Penalty - Held that - There could be a bona fide belief on the part of the assessee not to reverse the credit. Otherwise also the said credit availed by them was not being utilized, thus leading credence to the appellant s believe that there was no mala fide as they were having sufficient credit balance in their records - penalty set aside. Demand is confirmed but penalty and interest are set aside - appeal allowed in part.

Summary

Issues:
1. Availment of Cenvat Credit for defective capital goods.
2. Requirement to reverse Cenvat Credit and imposition of interest.
3. Initiation of proceedings after a period of one year.
4. Contesting the confirmation of interest and imposition of penalty.

Analysis:

1. The appellant availed Cenvat Credit for certain capital goods, which were later found to be defective and written off in their books of accounts. The Revenue contended that the appellant had to reverse the Cenvat Credit availed for the defective goods. The appellant accepted this and debited the credit amount without utilization. The appellant argued that no interest should be payable as the credit remained only as a paper entry.

2. Subsequently, proceedings were initiated after more than a year through a show cause notice to appropriate the debited amount, confirm interest, and impose a penalty. The impugned order confirmed the demand, interest, and imposed a penalty of the same amount. The appellant contested the confirmation of interest and imposition of penalty, acknowledging the reversal of the credit.

3. The appellant argued that the initiation of proceedings for appropriation of the debited amount was time-barred, but they had already reversed the credit. The appeal focused on contesting the confirmation of interest and penalty. The Tribunal noted that the credit remained a paper entry and was not utilized until reversal, citing a Karnataka High Court decision that no interest liability arises when wrongfully taken credit is reversed without utilization.

4. Regarding the penalty, the Tribunal considered the law amendment in 2007 requiring the reversal of credit for "written off goods." Given the period around the amendment, the Tribunal found a bona fide belief on the appellant's part not to reverse the credit. The appellant's belief was supported by the fact that the credit remained unutilized, indicating no malice. The penalty was set aside based on the appellant's genuine belief and prompt reversal of credit upon audit notification.

5. In conclusion, the Tribunal confirmed the demand but set aside the penalty and interest. The appeal was disposed of accordingly, emphasizing the genuine belief of the appellant and the lack of malafide intent in the credit reversal process.