Service provider wins partial relief on CENVAT credit dispute for diesel electricity charges in AMC services

M/s Bharat Sanchar Nigam Ltd. Versus Commissioner of Central Excise & Service Tax, Meerut-I

M/s Bharat Sanchar Nigam Ltd. Versus Commissioner of Central Excise & Service Tax, Meerut-I - TMI Issues Involved:
1. Wrongful availing and utilization of CENVAT Credit on penalty deductions from AMC invoices.
2. Wrongful availing and utilization of CENVAT Credit on diesel and electricity charges.
3. Liability to penal action for contravention of CENVAT Credit Rules.

Issue-wise Detailed Analysis:

1. Wrongful Availing and Utilization of CENVAT Credit on Penalty Deductions:

The key issue was whether the appellant wrongly availed CENVAT Credit of Service Tax amounting to Rs. 2,08,47,037/- on account of penalty deductions from invoices of AMC service providers. The adjudicating authority found that the appellant, while making payments for services, deducted amounts as penalties but availed full CENVAT Credit on the total invoice amount, including the service tax on the deducted penalty amounts. Rule 4(7) of the CENVAT Credit Rules, 2004, stipulates that credit is allowed only after payment of the invoice value. The Board's clarification and judicial precedents indicate that credit should be proportionate to the actual payment made. The adjudicating authority held that since the appellant did not pay the penalty amount to service providers, they were not entitled to the full CENVAT Credit. The Tribunal remanded this issue back to the original authority for verification from the service provider's end regarding the actual service tax paid.

2. Wrongful Availing and Utilization of CENVAT Credit on Diesel and Electricity Charges:

The adjudicating authority denied CENVAT Credit on diesel and electricity charges reimbursed to AMC service providers, amounting to Rs. 2,40,99,686/-. The authority treated diesel and electricity as ineligible inputs under Rule 2(k) of the CENVAT Credit Rules, 2004. However, the Tribunal found that the appellant claimed credit on input services provided by AMC service providers, who used diesel and electricity as inputs for providing services. The Tribunal noted that the adjudicating authority misdirected itself by focusing on the eligibility of diesel and electricity as inputs, rather than the service tax paid on the AMC services. The Tribunal set aside the demand and penalty related to this issue, as the service provider paid service tax on the services provided.

3. Liability to Penal Action:

The issue of penalties was linked to the wrongful availing of CENVAT Credit. The adjudicating authority imposed penalties under Rule 15(1) of the CENVAT Credit Rules, 2004, read with Section 76(1) of the Finance Act, 1994, due to the appellant's contravention of the CENVAT Credit Rules. The appellant argued that being a government undertaking, there was no intent to evade taxes. The Tribunal kept the penalty issue open, remanding it back to the adjudicating authority for reconsideration after determining the remanded issues.

Conclusion:

The Tribunal partially allowed the appeal, remanding the issue of CENVAT Credit on penalty deductions for verification and setting aside the demand and penalty related to diesel and electricity charges. The adjudicating authority was directed to conduct de novo proceedings within three months, addressing the remanded issues and reconsidering penalties accordingly.