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2021 (8) TMI 810 - AT - Service TaxWrong utilization of CENVAT credit - wrongly availed CENVAT Credit on ineligible input services - Short payment of service tax - short paid interest - HELD THAT - The Department has confirmed the demand of ₹ 11,38,618/- in respect of the unsold flats whereas as per the appellant, they are required to reverse only ₹ 1,79,776/- in terms of the formula under Rule 6 (3A) and both the authorities have wrongly quantified the amount. Further, it is found that as per the submissions of the appellant, they have reversed the credit of ₹ 27,08,994/- in their books of accounts and submitted the complete details to the Department for verification but the same reversal was not considered for not having disclosed full credit in Returns. The amended Rules has not been invoked in the SCN and as per the formula prescribed under Rule 6(3A) of the CCR inserted vide Notification No.13/2016 with effect from 01.04.2016, the amounts so computed works out to be ₹ 1,79,776/- as per the appellant - the matter needs to be remanded back to the Original Authority with a direction to verify the quantum of credit available in the books and reversal made by the appellant to determine the exact demand of tax from the appellant, if any. Short payment of service tax - HELD THAT - This demand has been accepted by the appellant but as per the submission of the appellant that this can be adjusted out of closing balance of ₹ 9,19,950/- remaining unutilized as on 30.06.2017 or as against the amount already excess reversed by him and the same is permissible as per Circular dated 28.03.2012. Further, this adjustment of short paid tax will also be considered by the Original Authority after verification of the quantum of credit in the books of the appellant and the reversal made by them as submitted by the learned Consultant. Demand of interest - HELD THAT - There was a sufficient balance in the CENVAT credit account of the appellant during the relevant period and therefore by applying the ratio of the Hon ble Karnataka High Court in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX LARGE TAXPAYER UNIT, BANGALORE VERSUS M/S BILL FORGE PVT LTD, BANGALORE 2011 (4) TMI 969 - KARNATAKA HIGH COURT and M/S. OIL NATURAL GAS CORPORATION LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE ST., SURAT 2015 (1) TMI 41 - CESTAT AHMEDABAD decided by the Tribunal of Ahmedabad Bench, the appellant is not liable to pay interest on the delayed payment. The case remanded back to the Original Authority with a direction to pass a fresh order after verification of the quantum of credit as per the records and the reversal made by the appellant and if the Original Authority comes to the conclusion that the appellant has excess reversed CENVAT credit then the same may be considered for setting off the demand determined in terms the formula under Rule 6(3A) which according to the appellant works out to ₹ 1,79,776/- - appeal allowed by way of remand.
Issues:
1. Reversal of CENVAT credit on unsold flats 2. Service tax short payment 3. Applicability of interest on belated payment Analysis: Reversal of CENVAT credit on unsold flats: The appellant contested the demand for reversal of CENVAT credit on unsold flats post-completion of the project. They argued that eligibility of CENVAT credit should be determined at the time of service receipt, not post-completion. The appellant cited relevant case laws to support their stance. They also highlighted that Rule 6 of CENVAT Credit Rules does not mandate reversal pre-completion. The appellant voluntarily reversed credit but authorities disregarded this. The Tribunal found discrepancies in the quantification of the demand and directed a reevaluation based on actual figures and compliance with Rule 6. Service tax short payment: The appellant acknowledged the service tax short payment and proposed adjustments from unutilized balances. They referenced Circular No.962/05/2012 to support their position. The Tribunal agreed that the short paid tax could be offset from existing balances or excess reversals. The Original Authority was tasked to verify the credit records and reversals for accurate assessment. Applicability of interest on belated payment: Regarding interest on belated payment, the Tribunal noted the appellant had sufficient CENVAT credit during the relevant period. Citing precedents, including judgments by the Karnataka High Court, the Tribunal ruled that interest was not applicable due to the available credit balance. The Tribunal directed the Original Authority to issue a fresh order after verifying the credit details and reversals, allowing for adjustments if excess reversals were found. In conclusion, the appeal was allowed for remand, with the Original Authority instructed to reassess the demands considering the appellant's submissions and compliance with relevant rules and circulars. An opportunity for a hearing was mandated before the issuance of a fresh order within two months of receiving the order copy.
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