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2022 (9) TMI 1283 - AT - Central ExciseRecovery of the irregularly availed Cenvat credit alongwith interest and penalty - appellant paid excess service tax on inward freight under the category of Transport of Goods by road in a goods carriage , and subsequently availed excess Cenvat credit on input services - HELD THAT - From the impugned order and the arguments as recorded the fact of payment of service tax is not in dispute. Once the fact of payment of service tax is not disputed the CENVAT Credit availed by the appellant which is equal to the tax paid cannot be disputed. In the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES 2012 (7) TMI 141 - BOMBAY HIGH COURT , the Hon'ble High Court of Mumbai held that during the relevant period, that is, during the period from 2 nd March 2005 to 31st December 2005, it could not be said that the issue was settled and that the assessee paid duty on decoiled HR/CR coils knowing fully well that the same were not manufactured goods. If duty on decoiled HR/CR coils was paid bona fide, then availing credit of duty paid on HR/CR coils cannot be faulted. In view of the decision of the Hon ble High Court of Mumbai, there are no merits in the impugned order and the same is set aside - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Disallowance and recovery of irregularly availed Cenvat credit. 2. Recovery of interest on the irregularly availed Cenvat credit. 3. Imposition of penalty for irregularly availing Cenvat credit. 4. Interpretation and applicability of exemption notifications and conditions. 5. Revenue neutrality and limitation period. Issue-wise Detailed Analysis: 1. Disallowance and Recovery of Irregularly Availed Cenvat Credit: The Commissioner disallowed and ordered the recovery of Cenvat credit amounting to Rs. 50,56,154 availed by the appellant on the grounds that the appellant paid service tax on 100% of the gross freight amount instead of the 25% as specified under Notification No. 32/2004-ST and Notification No. 1/2006-ST. The appellant argued that these notifications were conditional and optional, and that they were not able to obtain the necessary declarations from the Goods Transport Agency (GTA). The Tribunal, relying on the case of Ajinkya Enterprises and Kalika Steel Alloys Pvt. Ltd., held that since the service tax was paid and not disputed, the Cenvat credit availed by the appellant could not be disputed, and thus, the disallowance and recovery of the Cenvat credit were not justified. 2. Recovery of Interest: The Commissioner ordered the recovery of interest on the disallowed Cenvat credit under Section 11AB of the Central Excise Act, 1944 read with Rule 14 of the Cenvat Credit Rules, 2004. The Tribunal, however, found that since the service tax paid was not disputed and the credit availed was equal to the tax paid, the recovery of interest was not sustainable. 3. Imposition of Penalty: The Commissioner imposed a penalty equal to the amount of disallowed Cenvat credit under Rule 15 of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. The Tribunal, referencing the decisions in various cases including Sony India Ltd. and Punjab Tractors Ltd., held that the imposition of penalty was not justified as the appellant had paid the service tax and availed the credit in a bona fide manner. 4. Interpretation and Applicability of Exemption Notifications and Conditions: The Commissioner held that the exemption notifications were conditional and not optional, and that the appellant was required to pay service tax only on 25% of the gross freight amount. The Tribunal, however, found that the notifications were indeed conditional and optional, and that the appellant's payment of service tax on 100% of the freight amount was legal and correct. The Tribunal also noted that the appellant was entitled to Cenvat credit on the service tax paid, making the entire exercise revenue neutral. 5. Revenue Neutrality and Limitation Period: The Commissioner rejected the appellant's contention of revenue neutrality, stating that the excess service tax paid was not in the nature of service tax but an amount, and thus no Cenvat credit was available. The Tribunal, however, found that the entire exercise was revenue neutral as the appellant was entitled to the Cenvat credit on the excess service tax paid. Regarding the limitation period, the Commissioner held that the show cause notice was issued within five years from the date of knowledge of the department, and thus was not time-barred. The Tribunal did not find it necessary to delve into the limitation issue as it set aside the impugned order on other grounds. Conclusion: The Tribunal set aside the impugned order, allowing the appeal and holding that the disallowance and recovery of the Cenvat credit, recovery of interest, and imposition of penalty were not justified. The Tribunal emphasized the legality of the service tax payment and the entitlement to Cenvat credit, making the entire exercise revenue neutral. The appeal was allowed, and the order was pronounced in the open court on 27.09.2022.
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