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of <h1>CENVAT credit on courier licence services reversed before use - demand and penalty under r.15(5) CCR set aside</h1> Whether CENVAT credit availed for service tax on a courier licence was legally taken and liable to demand and penalty. The tribunal applied the principle ... Availment of CENVAT credit of service tax paid on licence for providing courier service - service connected with the manufacturing activity undertaken or not - levy of equal amount of penalty u/r 15(5) of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 - HELD THAT:- As per the evidence on record, the credit was availed on 13.10.2013 and when the audit was conducted on 11/12.11.2013, the appellant reversed the credit on 12.11.2013. However, show cause notice (SCN) was issued on 07.08.2014. It is a well settled law that reversal of unutilized CENVAT credit amounts to not taking of credit. Since the credit has been reversed before utilization, show cause notice could not have been issued. Following the ratios of the decision relied by the appellant in Rana Sugars [2009 (9) TMI 350 - CESTAT, NEW DELHI], it is found that the demand of cenvat credit already reversed before utilization and imposition of penalty is unsustainable and impugned order to that extent is liable to be set aside. The impugned order to the extent of confirmation of demand of Cenvat credit and imposition of penalty is set aside - Appeal allowed in part. Issues: (i) Whether availment of CENVAT credit of service tax paid on licence for providing courier service is tenable and whether demand and penalty confirmed by the adjudicating authorities are sustainable.Analysis: The facts show credit was availed on 13.10.2013 and reversed on 12.11.2013 before any utilization. Rule 14 of the Cenvat Credit Rules, 2004 provides for recovery where CENVAT credit has been taken and utilized wrongly or erroneously refunded; the rule thus contemplates utilization as a precondition for recovery proceedings under its scheme. Authorities and precedents establish that reversal of unutilized CENVAT credit amounts to non-taking of credit. The question of eligibility of the service-credit when not utilized is distinct from a determination where credit has been utilized. Where credit is reversed prior to utilization, issuance of a show cause notice under Rule 14 and imposition of penalty under Rule 15 are not sustainable to recover the reversed amount. Relevant provisions on common pool and cross-utilization (Rule 3(1) and Rule 3(4)) indicate that classification as manufacturer or service provider does not create separate criteria for taking CENVAT credit under the Rules.Conclusion: The demand for CENVAT credit and the penalty insofar as they relate to credit reversed before utilization are not sustainable and are set aside in favour of the assessee.
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