2019 (5) TMI 52 - AT - Central Excise

CENVAT Credit - input services - rent-a-cab services - HELD THAT - Since the learned Chartered Accountant submits that he is not contesting the CENVAT Credit on the rent-a-cab services, there is no dispute to that extent. Penalty u/r 15 (2) of CCR - HELD THAT - There is no sufficient evidence of either fraud or collision wilful mis-statement or suppression of facts in order to justify imposing penalty. Undoubtedly, there is violation of rules while availing CENVAT credit but the intent to evade payment of central excise duty is not evident from the records. In view of the above, there is a case to set aside the penalty under Rule 15(2). Appeal allowed in part.

Summary

Issues:
1. Availment of ineligible CENVAT credit against various services.
2. Imposition of penalty under Rule 15(2) of CENVAT Credit Rules 2004.

Analysis:
1. The appellant availed ineligible CENVAT credit against services like rent-a-cab service, works contract service, maintenance or repair services, and dealer's invoice during different financial years. The audit identified these wrongful availments, and the appellant reversed the disputed amounts upon detection. The show-cause notice sought reversal of the CENVAT credit and proposed penalties under Rule 15(2) of CENVAT Credit Rules 2004. The appellant contested the CENVAT credit on rent-a-cab service but not on the other amounts. The appellant's representative argued that the wrongful availment was due to genuine clerical errors, emphasizing the lack of mens rea or intent to evade duty. The representative pointed out that no interest demand was made in the notice, indicating that the availed credit was not utilized. The appellant prayed for setting aside the penalty under Rule 15(2) based on the absence of fraud or wilful misstatement.

2. The Authorized Representative (A.R.) highlighted that the appellant only reversed the CENVAT credit upon departmental detection, suggesting intentional wrongful availment to evade excise duty. The A.R. argued that if it was a genuine mistake, the appellant could have rectified it during the finalization of accounts. The A.R. contended that the penalty under Rule 15(2) should be upheld due to the intentional wrongful availment. However, upon review, the Tribunal found no sufficient evidence of fraud, collusion, or wilful misstatement to justify imposing the penalty. While acknowledging the rule violations in availing CENVAT credit, the Tribunal did not find evidence of an intent to evade duty. Consequently, the Tribunal partly allowed the appeal by setting aside the penalty under Rule 15(2) but upholding the rest of the order.

In conclusion, the Tribunal's decision in the appellate judgment involved addressing the wrongful availment of CENVAT credit against various services by the appellant and determining the imposition of penalties under Rule 15(2) of CENVAT Credit Rules 2004. The Tribunal found no evidence of fraud or intent to evade duty, leading to the setting aside of the penalty under Rule 15(2) while upholding the remaining aspects of the order.