TaxTMI 
TaxTMI 
2021 (1) TMI 8
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....) of Cenvat Credit Rules, 2004. It was alleged that the appellant has not complied with the said provision in as much as it has failed to pay on monthly basis, an amount equal to 50% of the credit availed on inputs and input services used for provision of output service of banking and other financial services. Accordingly, a show cause notice dated 07.07.2017 was issued for a period of October 2011 to September, 2012 demanding a Cenvat Credit of Rs. 4,35,66,901/- alleging the misrepresentation, suppression of facts and failure to furnish a document/ledger, allegedly with an intent to evade the payment of requisite amount. Accordingly, penal interest and penalty was also proposed to be imposed upon the appellant. The order under challenge has confirmed for the partial demand of Rs. 22,71,183/- alongwith the interest and the penalty under Section 78 of the Finance Act. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Mr. Hemant Bajaj, Advocate and Ms. Sukriti Das, Advocate for the appellant and Mr.Yashvir Singh, learned Authorized Representative for the Revenue. 3. It is submitted on behalf of the appellant that the Cenvat Credit on the inputs has been de....
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....s. & S.T., Indore, 2020 (4) TMI 382 - CESTAT, NEW DELHI. b) CCE, Mumbai -IV vs. Damnet Chemicals Pvt. Ltd. , 2007 (216) ELT 3 (S.C.) c) CCE, Chandigarh vs. Punjab Laminates Pvt. Ltd., 2006 (202) ELT 578 (SC) d) Cosmic Dye Chemical vs.Collector of c.Ex., Bombay - 1995 (75) ELT 721 (SC) Based on these submissions, ld. Counsel for appellant has prayed for order under challenge to be set aside and appeal to be allowed. 4. Learned D.R. on the other hand has submitted that as per Rule 6 (3B) the reversal of Cenvat Credit has to be made on monthly basis. The word "shall" has been used in the provision to mandate the monthly reversal of Cenvat taken on the inputs / input services each month. It is impressed upon that apparently and admittedly each month has some shortage as is otherwise apparent from the table in the order itself except for the month of November, 2011 and March, 2012. Due to this mandate only, there is no error in the adjudicating order for confirming the demand of Rs. 22,73,183/-. With respect to the acknowledged excess payment by the appellant it is submitted by ld. D.R. that appellant had the appropriate remedy for getting the refund. Ho....
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....cceeding financial year, where the amount determined as per condition (c) is more than the amount paid; Sub-Rule 6 (3A) (f) reads as follows marked Where the amount determined as per condition (c) is less than the amount determined and paid as per condition (b), the said manufacturer of goods or the provider of output service may adjust the excess amount on his own, by taking credit of such amount; Rule 6 (4A) of Service Tax Rules reads as follows:- (4A)Notwithstanding anything contained in sub-rule (4), where an assessee has paid to the credit of Central Government any amount in excess of the amount required to be paid towards service tax liability for a month or quarter, as the case may be, the assessee may adjust such excess amount paid by him against his service tax liability for the succeeding month or quarter, as the case may be. 9. A conjoint reading of these Rules make it clear that the adjustments of excess reversal of credit with short reversal and vise verse to that extent is statutorily permissible. This observation when clubbed with the admitted fact of excess reversal of Cenvat Credit by the appellant though at the time of filing....
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.... more res-integra. Relying upon the said decisions, I am of the opinion that the adjustment made towards the monthly service liability in the subsequent month of filing the return by the appellant cannot be denied to him. The Principal Commissioner is opined to have formed a very rigid opinion on a rigid technical ground while confirming the demand even of Rs. 22,73,183/- despite acknowledging the excess reversal of Cenvat Credit amount by the appellant. 13. Further, I am of the opinion that once there is an excess payment, malafide intention that too of tax evasion cannot be alleged qua the appellant. No doubt the period of one year of serving Show Cause Notice stands extended to 5 years had there been the intent to evade tax or there is suppression of tax but from the above discussion it is apparently clear that there is no evasion of tax /duty, no question of intent to evade at all arises. Admittedly entire Ledger Accounts duly supported by CA Certificate were submitted by the appellant to the authorities, the question of suppression of facts that too willful does not at all arises. Present is therefore, the case which is not covered by the proviso of Section 73 of Central Ex....