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Maxworth Plywood Pvt. Ltd V/S CCT, Visakhapatnam - G.S.T.


Company & Directors' Information:- M P PLYWOOD LIMITED [Under Liquidation] CIN = U20211DL1981PLC011451

Company & Directors' Information:- MAXWORTH INDIA PVT LIMITED [Active] CIN = U45201AS1997PTC005174

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

    Appeal No. E/30470/2018 (Arising out of Order-in-Appeal No. VIZ-EXCUS-002-APP-112-17-18 dated 24.01.2018 passed by Commissioner (Appeals), Guntur, Customs & Central Tax) and Final Order No. A/30749/2018

    Decided On, 24 July 2018

    At, Customs Excise Service Tax Appellate Tribunal Regional Bench Hyderabad

    By, THE HONORABLE JUSTICE: P.V. SUBBA RAO
    By, MEMBER

    For Petitioner: N.V. Ramana, Advocate And For Respondents: Dass Thavanam, Superintendent/DR



Judgment Text


1. This appeal is filed against Order-in-Appeal No. VIZ-EXCUS-002-APP-112-17-18 dated 24.01.2018. Heard both sides and perused the records. The appellant is manufacturer of Plywood, Flush Doors, Black Boards and Liquid Resins, etc. They also avail benefit of CENVAT credit. During audit it was pointed out that the assessee had wrongly taken credit on invoices on the following grounds:

(a) They took credit on documents which are not in their name but in the name of their CHA.

(b) They have taken credit of the entire amount of freight instead of service tax paid on it.

(c) They have taken credit on tax paid on insurance amounts.

2. When this was pointed out, appellant reversed the entire credit along with interest thereon. Subsequently two show cause notices were issued seeking to dis-allow the credit and demanding interest and proposing to impose penalty on them. The demands were confirmed by the lower authorities along with interest and the amounts already paid were appropriated towards the same. The lower authority also imposed penalties under Rule 15(2) of CENVAT Credit Rules r/w. Sec. 11AC of the Central Excise Act for contravention of the provisions of CENVAT Credit Rules, 2004 with an intention to evade payment of duty. Aggrieved, the assessee filed an appeal before the Learned Commissioner (Appeals) who vide impugned Order-in-Appeal upheld the Order-in-Original in its entirety and rejected the appeal. This appeal is against impugned Order-in-Appeal. It is the contention of the appellant that where the invoices which were in the name of their CHA but not in their name, the services were actually rendered to them and the invoices were raised in the name of their CHA but on their account. In the case of the amount of freight taken as credit instead of tax paid on it, the appellant claims that it was a bona fide mistake by the person dealing with the work and it was already corrected as soon as it was pointed out by the audit. As far as the credit of tax paid on the insurance amount is concerned, the assessee contends that they are entitled to the credit of duty. It is the contention of the appellant that although they are entitled to credit as above (except the credit amount of freight taken) in order to avoid litigation; they had reversed the entire amount when pointed out by the audit along with interest. Since that did not happen and a show cause notice was issued and penalty was imposed by the lower authority and upheld by the first appellate authority they would contest the matter both on the eligibility of the credit as well as the penalty. The Learned Counsel for the appellant produced a list of 29 invoices on which credit was taken by them but which were in the name of their CHA (Custom House Agents). He also produced invoice No. 405 dated 14.05.2011 issued by M/s. Gateway East India Pvt. Ltd. in the name of Act Marine Agency, Visakhapatnam on account of M/s. Maxworth Plywoods Pvt. Ltd. The Learned Counsel also contended that there was no willful suppression of facts in the present case and there was only an omission or failure. He also contended that the demand was clearly time barred as there is no willful suppression of the facts.

3. The Learned Departmental Representative on the other hand reiterated the arguments made in the Order-in-Appeal and said that the penalty can be imposed for not filing the returns or non-payment of service tax as held in the case of K. Madhav Kamath Brother & Co : 2015 (38) STR 249 (Tri.-Bang.)] which was upheld by the Hon'ble High Court of Karnataka. He also relied on cases of Rajasthan Spinning and Weaving Mills : 2009 (238) ELT 3 (SC)] in which it was held that the mandatory penalty has to be imposed whether or not the duty was paid before or after the show cause notice has been issued.

4. I have considered both sides of the argument. Of the three grounds on which CENVAT credit was said to be taken wrongly by the appellant, they conceded their mistake as far as taking credit of the amount of freight instead of tax paid on it is concerned. As far as the case where they took credit on documents which were issued in the name of their CHA but not in their name is concerned, it is the contention of the appellant that these invoices carry their name also or if they do not, their name can be incorporated. Therefore, they are entitled to the credit of the service tax paid on those services. As far as the credit of tax paid on insurance amount is concerned, they contend that they are entitled to the same. It is their contention that insurance was relating to their inward transportation of inputs or procurement of inputs and hence insurance paid on service of transportation is covered in terms of the input service under CENVAT Credit Rules. However, I am unable to decide on this aspect as there are no invoices before me to decide whether or not these are related to the provision of inward transportation of their inputs. Of the three issues, they conceded one and about the other two, needs factual verification of the individual documents to see whether the invoices raised in the name of their CHA were actually related to the services rendered for the appellant. Similarly it is also to be ascertained whether the insurance service on which they claimed service tax credit is relatable to their inward transport of inputs. As far as the interest and penalty are concerned they are liable to be imposed if the assessee had taken credit in contravention of CENVAT Credit Rules, with an intention to evade payment of duty. As held by the Hon'ble Tribunal in the case of K. Madhav Kamath Brothers & Co. (supra) the amount of mandatory penalty does not get reduced by the fact that they have reversed amount before the issue

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of show cause notice. In conclusion, I find it is a fit case to be remanded back to original authority to verify, a) whether the invoices issued in the name of CHA of the appellant are actually on their account, entitle them to the benefit of service tax credit or not and, b) whether the service tax on insurance claimed by them are in relation to inward transport of their inputs or not and re-determine the amount of ineligible CENVAT credit, if any. The amount of interest and penalty will also vary if the amount of ineligible CENVAT credit gets altered. 5. The appeal is allowed by way of remand to the original authority as above.
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