2013 (11) TMI 450 - AT - Service Tax

Tribunal orders recovery of irregular Cenvat credit, penalties imposed

The Appellate Tribunal CESTAT NEW DELHI considered the disallowance of Cenvat credit irregularly availed by the petitioner and ordered recovery under Rule ... CENVAT Credit - Exempted service Prior to November 2008 - Held that:- alleging irregular availment of Cenvat credit of Rs.5,42,11,516/- for the period prior to November 2008, proceedings were initiated culminating into the adjudication order. In response to the Show Cause Notice dated 17.6.2010, the petitioner submitted on 13.8.2010. In the adjudication order despite noticing that Rs.6.02 crores was remitted by the petitioner towards exempted services provided for the period prior to November 2008, utilising its Cenvat credit, the adjudicating authority ordered recovery of Rs.5,42,11,516/- for having wrongly availed credit to this extent and ordered recovery thereof, under Rule 14 of Cenvat Credit Rules, 2004 - applicant has made out a strong prima facie case for waiver of pre-deposit. We accordingly grant waiver of pre-deposit and stay all further proceedings pursuant to impugned adjudication order dated 24.2.2012, pending disposal of the appeal - stay granted. Issues: Disallowance of Cenvat credit, Recovery under Rule 14, Imposition of penalties under Sections 76 and 77, Utilization of input services, Remittance of tax for exempted services, Alleged irregular availment of credit, Waiver of pre-deposit, Stay of proceedingsIn the present case, the Appellate Tribunal CESTAT NEW DELHI considered the adjudication order disallowing Cenvat credit of Rs.5,42,11,516/- irregularly availed by the petitioner. The order also mandated the recovery of the disallowed amount under Rule 14 of the Cenvat Credit Rules and imposed penalties under Sections 76 and 77 of the Act and Rule 15(3) of Cenvat Credit Rules 2004. The petitioner, engaged in providing taxable services, had availed input tax credit for certain input services utilized for providing taxable output services post-November 2008. However, the petitioner had remitted tax of Rs. 6.02 crores for exempted services provided before November 2008 using the available Cenvat credit under Rule 6(3) of the Cenvat Credit Rules, 2004.The proceedings were initiated based on the alleged irregular availment of Cenvat credit for the period preceding November 2008. Despite the petitioner remitting Rs. 6.02 crores towards exempted services provided before November 2008 using Cenvat credit, the adjudicating authority ordered the recovery of Rs. 5,42,11,516/- for the purported wrongful availment of credit. The order for recovery was made under Rule 14 of the Cenvat Credit Rules, 2004, even though the petitioner had already remitted the amount in compliance with Rule 6 of the said rules.The Tribunal, after considering the facts, found that the petitioner had a strong prima facie case for the waiver of pre-deposit. Consequently, the Tribunal granted the waiver of pre-deposit and stayed all further proceedings related to the impugned adjudication order dated 24.2.2012 until the appeal's final disposal. As a result of the stay application being disposed of, the Miscellaneous application was deemed infructuous and subsequently dismissed.