2010 (2) TMI 333 - AT - Service Tax

Penalty- Irregular availment of Cenvat Credit- the appellant had paid service tax of Rs. 3, 96, 744/- under the category C&F Agent for services rendered during the financial years 2004-05 and 2005-06 (upto 9/2005). The original authority demanded the cenvat credit of service tax irregularly taken under Rule 14 of the Cenvat Credit Rules 2004 along with applicable interest. Equal amount of penalty was imposed under Rule 15(4) of Cenvat Credit Rules. A total penalty of Rs. 25, 000/- was imposed under Sections 76 & 77 of the Finance Act 1994. The appellants have already paid the wrongly availed cenvat credit along with due interest. Held that- matter remanded to original authority. Appellant to establish transfer of ownership at destination and exports on FOR destination basis.

Issues:
1. Appeal against demand for wrongly availed cenvat credit, interest, and penalties.
2. Imposition of penalties under Cenvat Credit Rules and Finance Act, 1994.
3. Allegation of fraud, collusion, willful mis-statement, or suppression of facts.
4. Validity of penalties imposed under Rule 15(4) of Cenvat Credit Rules.
5. Applicability of penalties under Sections 76 & 77 of the Finance Act, 1994.

Analysis:
1. The appeal was filed by M/s. Sudhakar Polymers Ltd. challenging an order demanding repayment of wrongly availed cenvat credit of Rs. 3,96,744 along with interest and penalties. The appellant initially paid service tax under the category C&F Agent for services rendered during specific financial years. Subsequently, they claimed cenvat credit on the tax paid, believing they were not liable to pay it again. The original authority found the cenvat credit irregularly taken and demanded repayment along with interest and penalties under Cenvat Credit Rules and Sections 76 & 77 of the Finance Act, 1994.

2. The appellant argued that penalties were imposed without any allegation or finding of fraud, collusion, willful mis-statement, or suppression of facts to evade tax payment. They contended that for penalties under Rule 15(4) of Cenvat Credit Rules to apply, there must be evidence of intentional wrongdoing. As no such allegations were made in the show cause notice or orders, the penalties were unjustified. The appellant maintained that the penalties under Sections 76 & 77 of the Finance Act were not applicable as the case concerned wrongly taken cenvat credit, not default in tax payment.

3. The Revenue asserted that the appellant was liable for penalties as they had wrongly claimed cenvat credit on service tax already paid. They argued that if the appellant believed they were not required to pay the tax, they should have sought a refund instead of claiming cenvat credit. The Revenue contended that the penalties were correctly imposed in accordance with the law.

4. The Tribunal examined the case records and submissions. It noted that the appellant had already repaid the disputed amount of service tax and interest. The penalties were imposed under Rule 15(4) of Cenvat Credit Rules, which requires evidence of fraud, collusion, willful mis-statement, or contravention of provisions with intent to evade tax payment. Since there was no proof of such intentional wrongdoing by the appellant, the penalties were deemed invalid and vacated.

5. Regarding the penalties under Sections 76 & 77 of the Finance Act, the Tribunal ruled that these provisions were not applicable in a case of wrongly claimed cenvat credit. As the impugned order did not involve default in tax payment or any other relevant infraction, the penalties under these sections were also deemed unjustified. Consequently, the impugned order was set aside, and the appeal was allowed.

← Previous Next →