2019 (3) TMI 1367 - AT - Central Excise

Imposition of penalty - availment of irregular credit - credit reversed before issuance of SCN - revenue neutrality - Held that - The appellant has reversed the credit before issuance of the show-cause notice. Undisputedly, the sister Unit would be eligible for the credit of the electricity consumed by them. The situation is, therefore, a revenue neutral one as argued by the learned counsel for the appellant - the penalty imposed is unjustified. Penalty set aside - other demand upheld - appeal allowed in part.

Summary

Issues:
1. Availing credit on input services related to windmills
2. Eligibility of sister Unit for credit
3. Imposition of penalty

Analysis:

Issue 1: Availing credit on input services related to windmills
The appellant, engaged in manufacturing 'chains' and 'sprockets,' availed credit on various input services related to windmills. The audit revealed that credit was taken on input services for electricity supplied to the sister Unit, which the appellant was not eligible for. A show-cause notice was issued to recover the credit along with interest and penalties. The original authority and the Commissioner (Appeals) upheld the demand.

Issue 2: Eligibility of sister Unit for credit
The appellant's counsel argued that the appellant mistakenly continued to avail credit on input services even after the electricity was wheeled out to the Tamil Nadu Electricity Board for supply to the sister Unit. The appellant reversed the credit before the show-cause notice was issued. The counsel contended that the sister Unit was eligible for the credit, making the situation revenue neutral.

Issue 3: Imposition of penalty
The Authorized Representative for the Revenue supported the imposition of penalties, stating that the appellant wrongly availed credit on input services related to the windmills, which only the sister Unit was eligible for. However, the appellant's counsel argued that since the appellant rectified the error by reversing the credit and the issue was revenue neutral, the penalty should be set aside.

The judgment, delivered by the Judicial Member, considered the arguments presented. It was acknowledged that the appellant had reversed the credit before the show-cause notice and that the sister Unit was eligible for the credit, resulting in a revenue-neutral situation. Consequently, the penalty imposed was deemed unjustified. The order was modified to set aside the penalty while upholding the demand and interest. The appeal was partly allowed with consequential reliefs, if any.