2019 (5) TMI 514 - AT - Service Tax

Imposition of penalty - Reversal of CENVAT Credit on being pointed out before issuance of SCN - HELD THAT - Once the appellant has reversed the CENVAT credit before the issuance of show-cause notice, the penalty is not imposable as there is no suppression of facts with intent to evade payment of duty - penalty set aside CENVAT Credit - input service - construction service - HELD THAT - On perusal of the invoices for other services relating to works contract for construction of collection tank and RO water and reconstruction of compound wall and construction of overhead tank, it is found that these services are also not new construction and are necessary in order to carry out the manufacturing process and therefore, they are integral to the manufacturing process and is covered under the scope of input service as defined in CENVAT Credit Rules, 2004 - Credit allowed. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Irregular availing of CENVAT credit on input services
- Rejection of appeal by Commissioner (A)
- Denial of CENVAT credit on construction services
- Imposition of penalties

Analysis:
1. Irregular availing of CENVAT credit on input services:
The appellant, engaged in manufacturing Gherkins and processed vegetables, availed CENVAT credit on input and input services. However, discrepancies were found in the distribution of ISD credit and availing credit on housekeeping, gardening, and work contract services. The appellant reversed some amounts but did not pay the full balance. A show-cause notice was issued demanding recovery of inadmissible credits, leading to the original authority confirming the demand and imposing penalties. The appellant contested these actions.

2. Rejection of appeal by Commissioner (A):
The appellant appealed before the Commissioner (A) against the Order-in-Original but was rejected. The consultant argued that the impugned order did not appreciate the definition of input service correctly and was contrary to judicial precedents. The appellant had reversed excess credits before the show-cause notice, contesting only penalties. The Commissioner upheld the original authority's decision, leading to the present appeal.

3. Denial of CENVAT credit on construction services:
The denial of CENVAT credit on construction services, specifically related to works contract services for various projects, was challenged. The appellant argued that these services were integral to the manufacturing process and fell within the definition of input services under CENVAT Credit Rules, 2004. Citing precedents and the necessity of these services for manufacturing activities, the appellant contested the denial.

4. Imposition of penalties:
Regarding the imposition of penalties, the Tribunal found that the appellant had reversed excess credits before the show-cause notice, indicating no intent to evade payment. The Tribunal also noted that the construction services, including the ETP plant setup, were essential for manufacturing activities and fell within the definition of input services. Consequently, the Tribunal held that the penalties were not sustainable in law and allowed the appeal, providing consequential relief.

In conclusion, the Tribunal set aside the impugned order, ruling in favor of the appellant based on the arguments presented, the correct interpretation of input services, and the lack of intent to evade payment, ultimately granting relief from penalties and upholding the availing of CENVAT credit on essential construction services.