TMI Blog2021 (1) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... iling Service Tax Returns after each six months, the short reversal of few of such months has been made good. Not only this, it is also an admission on part of department that due to deposits made at the time of filing the Service Tax returns the reversal becomes more than 50%. Thus, the issue stands squeezed to the effect as to whether adjustments of payment is permissible despite the mandate of monthly reversal of Cenvat Credit for an amount equal to 50% of the credit availed - 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 the return is sufficient to hold that the allegation of authority below and findings against appellant are not sustainable. Thus, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty 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 deposited monthly by the appellants. In-fact, the deposit is in excess of 50% of the credit availed on inputs and input services used by the appellant during the period of dispute. It is impressed upon that all requisite documents / Ledger Accounts were shown to the investigating Officer proving an excess payment of ₹ 54,00,000/- (fifty four Lakhs) approximately. It is further submitted that even the Department has acknowledged for the aforesaid excess deposits as is apparent from the order under challenge itself. Still the payment by the appellant is alleged to be short by ₹ 22,00,000/- (Twenty two Lakhs) approximately. It is submitted that in view of the acknowledgement of excess deposit, the order of recovery even of said ₹ 20,00,000 (twenty Lakhs) is bad in law. 3.1 It is submitted that whatever was the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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. However, said submission has been objected on the ground that remedy of refund is by now time barred. 5. Endorsing the correctness in the order under challenge, appeal is prayed to be dismissed. 6. After hearing both the parties, considered opinion of mine is as follows:- The issue in the present appeal pertains to reversal of credit by the appellant rendering Banking and other Financial Services in terms of Rule 6 (3B) of Cenvat Credit Rules, 2004. The Rule reads as follows:- (3B) Notwithstanding anything contained in sub-rules (1), (2) and (3), a anking company and a financial institution including a non-banking financial company engaged in providing services by way of extending deposits, loans or advances shall pay for every month an amount equal to fifty percent of the CENVAT credit availed on inputs and input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 the return is sufficient to hold that the allegation of authority below and findings against appellant are not sustainable. In the case of AC Nielson Org. Marg Pvt. Ltd. v. Commissioner of Service Tax, Mumbai-II reported in 2018 (12) GSTL 322 (Tri.-Mumbai) the Tribunal had considered this issue. It has been specifically held in this case as follows:- we are of the view that if in a particular month against the liability of 20% if the appellant utilized less than 20% and the remaining amount is available to the appellant for utilization and the same was utilized in subsequent month. On considering overall period, the total utilization remains within 20% ceiling irrespective in same month utilization is less than 20% and in subsequent month, the utilization is more than 20%, the conditions of Rule 6(3)(c) of Cenvat Credit Rules, 2002, in our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, 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 Excise Act. Above all, mere failure to pay tax is not a justification for imposition of penalty as has been held by Hon ble Delhi High court in the case of Bharat Hotels Limited vs. Commissioner, Central Excise (Adjudication), reported in 2018 (2) TMI 23 (Delhi- H.C.) . Even the Principal Bench of this Tribunal in the case of M/s. Pappu Construction vs. Commissioner, Central Excise reported in 2020 (4) TMI 382 while relying upon the decisions of Bharat Hotels (supra), Pushpam Pharmaceutical Co. vs. Commissioner of Central Excise, Bombay 1995 (78) ELT 401 (S.C.), Uniworth Textile Limited vs. Commissioner of Central Excise, Raipur 2013 (288) ELT 161 (SC), NRI Academy Guntur vs. Union of India 2019 (20) GSTL 23 (A.P.) as also a decision of the Principal Bench of the Tribunal in Bharti Hexcom Limited vs. Commissioner of Central Excise, Jaipur-I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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