2015 (11) TMI 1348 - AT - Service Tax

Tribunal upholds demand under CCR, 2004 but sets aside penalty under Section 78

M/s. Chowgule Industries Private Ltd. Versus Commissioner of Central Excise, Pune-III

The tribunal upheld the demand under Rule 6(3)(b) of CCR, 2004, due to suppressed facts regarding trading activity. However, it set aside the penalty ... Denial of CENVAT Credit - whether the demand of ₹ 33,619/- under Rule 6(3)(b) equal to 8% value of the trading activity in terms of Rules 6(3)(b) is correct or otherwise and whether penalty of ₹ 1,63,370/-imposed under Section 78 in respect of denial of Cenvat Credit availed before the payment of Service value to the service provider is legal and correct or not - Held that:- Credit was disputed only due to the reason that same was availed before the payment of service value to the service provider by the appellant however, in principle, the credit was very much admissible to the appellant which the appellant on pointing out discrepancy, immediately paid the amount. There was no malafide intention to evade the service tax by the notice and their only lapse was that they availed said credit before the payment of service value to the service provider, which they made goods by making payment of service tax amount along with interest. I find that explanation given by the original authority is satisfactory in invoking Section 80 for dropping the penalty proposed under Section 78. Therefore the Ld. Commissioner’s observations in the impugned order that there is no justification are erroneous and incorrect. In view of this, I set aside the penalty - Decided partly in favour of assessee. Issues:1. Interpretation of Rule 6(3)(b) of CCR, 2004 regarding demand of Cenvat Credit.2. Imposition of penalty under Section 78 for wrong availment of Cenvat Credit.Analysis:Issue 1: Interpretation of Rule 6(3)(b) of CCR, 2004 regarding demand of Cenvat Credit:The appeal challenged an Order-in-Appeal modifying the original order related to Cenvat Credit demands. The appellant, engaged in service receipt and trading of motor vehicle parts, faced demands and penalties. The original order dropped a Cenvat Credit demand of Rs. 33,691 but confirmed demands totaling Rs. 1,63,370 due to credit availed before service payment. The Commissioner(Appeals) partly upheld the demands and imposed penalties, leading to the current appeal. The appellant argued against the demand of Rs. 33,619 under Rule 6(3)(b), asserting trading activity doesn't qualify as exempted service. They cited a Board circular clarifying the matter post-dispute. The Revenue contended that the demand was valid due to non-disclosure of trading activity usage for services, justifying the extended period for demand. The tribunal upheld the demand, citing suppression of facts regarding trading activity and service usage, leading to the demand's sustainability.Issue 2: Imposition of penalty under Section 78 for wrong availment of Cenvat Credit:Regarding the penalty of Rs. 1,63,370 under Section 78 for availing credit before service payment, the appellant argued the credit was admissible, albeit taken slightly early, and was promptly rectified upon discovery. The original authority refrained from imposing penalties, citing Section 80 benefits. The Revenue defended the penalty, asserting inadmissible credit and suppression of facts warranted penalties. The tribunal reviewed the case, acknowledging the early credit but noting prompt rectification and payment. It upheld the original authority's decision to not impose penalties, citing Section 80 benefits and the absence of malafide intent to evade tax. The tribunal deemed the penalty unjustified and set it aside, partially allowing the appeal.In conclusion, the tribunal upheld the demand under Rule 6(3)(b) due to suppressed facts regarding trading activity, while setting aside the penalty under Section 78 for early credit availment, citing prompt rectification and lack of malafide intent.