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Rite Steel Industries Pvt. Ltd. V/S CCE, Chennai-I


Company & Directors' Information:- S A L STEEL LIMITED [Active] CIN = L29199GJ2003PLC043148

Company & Directors' Information:- M M S STEEL PRIVATE LIMITED [Active] CIN = U27109TZ1996PTC006849

Company & Directors' Information:- G. O. STEEL PRIVATE LIMITED [Active] CIN = U27100PB2007PTC031033

Company & Directors' Information:- J M G STEEL PRIVATE LIMITED [Strike Off] CIN = U27105BR1992PTC004985

Company & Directors' Information:- A K C STEEL INDUSTRIES LTD [Active] CIN = L27109WB1957PLC023360

Company & Directors' Information:- H L STEEL PVT LTD [Active] CIN = U27107AS1992PTC003726

Company & Directors' Information:- K V M STEEL PRIVATE LIMITED [Active] CIN = U29141DL1988PTC031248

Company & Directors' Information:- K STEEL PRIVATE LIMITED [Strike Off] CIN = U27104JH1973PTC000998

Company & Directors' Information:- RITE STEEL INDUSTRIES PRIVATE LIMITED [Active] CIN = U27105TN1995PTC030037

Company & Directors' Information:- R. J. STEEL PRIVATE LIMITED [Active] CIN = U28112MH2009PTC193047

Company & Directors' Information:- M M STEEL PRIVATE LIMITED [Active] CIN = U27107MH2001PTC131270

Company & Directors' Information:- S K P STEEL INDUSTRIES PRIVATE LIMITED [Active] CIN = U27310WB1997PTC085261

Company & Directors' Information:- B L STEEL PVT LTD [Active] CIN = U51909WB1981PTC034021

Company & Directors' Information:- R K G STEEL PRIVATE LIMITED [Active] CIN = U27109DL2004PTC128852

Company & Directors' Information:- V B STEEL PRIVATE LIMITED [Active] CIN = U28112MH2010PTC211691

Company & Directors' Information:- I B STEEL COMPANY PRIVATE LIMITED [Strike Off] CIN = U28910MH2010PTC211344

Company & Directors' Information:- X-RITE INDIA PRIVATE LIMITED [Active] CIN = U74120MH2011FTC216709

Company & Directors' Information:- A M R STEEL INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U27100MH2010PTC203176

Company & Directors' Information:- J S C STEEL PRIVATE LIMITED [Active] CIN = U27106UP2013PTC061568

Company & Directors' Information:- S. M. STEEL PRIVATE LIMITED [Active] CIN = U51101MH2013PTC239811

Company & Directors' Information:- R K P STEEL LTD [Active] CIN = L27109WB1980PLC033206

Company & Directors' Information:- C P STEEL PRIVATE LIMITED [Active] CIN = U27100WB2008PTC127447

Company & Directors' Information:- A. K. J. STEEL PRIVATE LIMITED [Active] CIN = U28112WB2010PTC144880

Company & Directors' Information:- C D STEEL PVT LTD [Under Liquidation] CIN = U27109WB1981PTC034340

Company & Directors' Information:- T M S STEEL PRIVATE LIMITED [Strike Off] CIN = U02710TZ1996PTC007498

Company & Directors' Information:- P M R STEEL PRIVATE LIMITED [Active] CIN = U51102DL2003PTC122675

Company & Directors' Information:- C T STEEL PVT LTD [Active] CIN = U27109WB2005PTC106634

Company & Directors' Information:- P G STEEL PVT LTD [Strike Off] CIN = U24111AS1998PTC005409

Company & Directors' Information:- A AND S STEEL PRIVATE LIMITED [Active] CIN = U63090DL1987PTC027835

Company & Directors' Information:- K S STEEL INDUSTRIES PRIVATE LIMITED [Active] CIN = U27320OR1993PTC003340

Company & Directors' Information:- A S STEEL INDUSTRIES PVT LTD [Strike Off] CIN = U27209WB1983PTC035796

Company & Directors' Information:- J S STEEL PRIVATE LIMITED [Active] CIN = U52190CT1978PTC001432

Company & Directors' Information:- U M STEEL PRIVATE LIMITED [Strike Off] CIN = U27209TN1986PTC013670

Company & Directors' Information:- L N STEEL PRIVATE LIMITED [Active] CIN = U27310WB2007PTC118206

Company & Directors' Information:- J B STEEL INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74999MH1954PTC009352

Company & Directors' Information:- R. N. STEEL PRIVATE LIMITED [Active] CIN = U27100WB2007PTC116588

Company & Directors' Information:- P M STEEL PRIVATE LIMITED [Active] CIN = U27105MP1982PTC001915

Company & Directors' Information:- M R STEEL (INDIA) PRIVATE LIMITED [Active] CIN = U27100TG2013PTC088808

Company & Directors' Information:- B N STEEL INDUSTRIES PVT LTD [Active] CIN = U27109WB1959PTC024368

Company & Directors' Information:- C K STEEL PVT LTD [Active] CIN = U29150WB1975PTC030259

Company & Directors' Information:- STEEL INDIA COMPANY (CHENNAI) PRIVATE LIMITED [Active] CIN = U27101TN2004PTC053840

Company & Directors' Information:- K STEEL & COMPANY PVT LTD [Strike Off] CIN = U51909WB1991PTC053960

Company & Directors' Information:- N S STEEL PVT LTD [Strike Off] CIN = U27106PB1980PTC004266

Company & Directors' Information:- R M STEEL INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1981PTC011723

Company & Directors' Information:- R C STEEL PVT LTD [Strike Off] CIN = U28112AS1980PTC001811

Company & Directors' Information:- INDIA STEEL INDUSTRIES PVT LTD [Strike Off] CIN = U28111WB1959PTC024156

Company & Directors' Information:- P D STEEL PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC038426

Company & Directors' Information:- A K STEEL PVT LTD [Strike Off] CIN = U99999DL1961PTC003566

Company & Directors' Information:- H S P STEEL PRIVATE LIMITED [Strike Off] CIN = U27100MH2013PTC242983

Company & Directors' Information:- D H STEEL PRIVATE LIMITED [Strike Off] CIN = U27109RJ2012PTC039742

Company & Directors' Information:- R A STEEL PRIVATE LIMITED [Active] CIN = U51909MH2014PTC253625

Company & Directors' Information:- N. V. STEEL PRIVATE LIMITED [Strike Off] CIN = U27310DL2009PTC186541

Company & Directors' Information:- K. D. STEEL PRIVATE LIMITED [Strike Off] CIN = U28939DL2012PTC244467

Company & Directors' Information:- STEEL INDIA PRIVATE LIMITED [Strike Off] CIN = U00349KA1958PTC001309

    E/42342/2017 (Arising out of Order-in-Appeal No. 56/2017 - CTA-II dated 30.08.2017 passed by the Commissioner of Central Tax (Appeals-II), CGST & CCE, Chennai) and Final OrdeR No. 41484/2018

    Decided On, 18 May 2018

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, THE HONORABLE JUSTICE: P. DINESHA
    By, MEMBER

    For Petitioner: Cynduja Crishnan, Advocate And For Respondents: R. Subramaniyam, AC (AR)



Judgment Text


1. The brief facts involved are that the assessee-appellant is a holder of Central Excise Registration No. AAACM5369FXM001 and engaged in the manufacturing activity of TMT Bars and Rods. The appellant had availed Cenvat credit on the input services; the services used for repair and maintenance of the factory premises. The dispute relates to the period February 2014 to April 2014. The Revenue alleging that the services provided were in the nature of construction service, and that the same was not used by the appellant directly or in relation to the manufacture of the final products and clearance of the final products up to the place of removal, issued a SCN dated 14.06.2016. It was further alleged by the Revenue that the appellant had not produced any documents relating to the availment of Cenvat credit and that no valid reasons were furnished to the effect that the said credit was available under the Rules. Accordingly, it was proposed in the SCN as to why:

i) Cenvat credit of Rs. 1,59,433/- for the period from February 2014 to April 2014 should not be disallowed and demanded from them under Section 11 A (4) of the CEA, 1944 read with Rule 14 of the CCR, 2004.

ii) An amount of Rs. 1,59,433/- reversed by them in their Cenvat account for the month of December 2015, should not be appropriated towards the amount demanded in (i) above,

iii) Interest should not be demanded from them on (i) above under Section 11AA of the CEA, 1944 read with Rule 14 of the CCR, 2004.

iv) Penalty should not be imposed upon them under Section 11AC of the CEA, 1944 read with Rule 15(2) of the CCR, 2004.

2. The appellant offered its reply by its letter dated 14.07.2016, wherein it had pleaded that they had availed the credit under a bona fide belief that it was eligible and that they reversed the same when it was pointed out by the audit, before utilization. It was also pleaded inter-alia by the assessee that the credit was reversed before issuance of SCN; that they had submitted their returns and furnished all the information as and when called upon by the department; that it was wrong to say that the availment of credit came to the light when their records were duly verified by the department; that they have regularly filed returns in time; that when all the facts were within the knowledge of the Revenue, there is no merit in imposing interest and penalty; that but for a false allegation of suppression was absolutely no evidence in support with the department nor have they shown any positive act of suppression by the appellant, etc.

3. The adjudicating authority passing Order-in-Original was of the view that the appellants had taken Cenvat credit wrongly on ineligible service which was liable to be recovered along with interest. The adjudicating authority further observed that the appellants had reversed the Cenvat credit immediately after it was brought to their notice as to the wrong availment of Cenvat credit which fact, according to the adjudicating authority, was to prove the bona fide intentions of the appellants. The adjudicating authority was therefore of the opinion that as per the definition of 'input service' at the material point of time, the services pertaining to 'modernization, renovation or repairs of a factory' qualified as input services under the inclusive clause of the definition under Rule 2(1) of the CCR, 2004. Further, he inter-alia observed that in the present case the assessee had availed the construction services for repair of factory; that as could be seen from the input service invoices, the services relate to painting, replacement of asbestos cement sheets and refixing of structural etc.; that from the inclusive clause of the definition, the impugned credit appears to be admissible while the exclusion clause makes the credit on construction service inadmissible; that apparently, the assessee is at a loss of proper interpretation of 'input service'; that such being the case, the assessee had taken the credit on the impugned construction services as two views are possible. Yet, the assessee had paid the duty involved, etc. Furthermore, the adjudicating authority also drew support on the Hon'ble Supreme Court decisions in the case of CCE Vs. Kisan Mouldings Ltd.- 2010 (260) ELT 167 (SC) to the effect that 'no penalty is imposable for a bona fide mistake in availing Cenvat credit. Thus, the adjudicating authority concluded that the assessee does not deserve to be penalized. The adjudicating authority, therefore, took a lenient view and desisted from imposing any penalty on the assessee after following the decisions of the Hon'ble Supreme Court in the cases of CCE Vs. Gujarat Narmada Fertilizers Co. Ltd : 2009 (240) ELT 661 (SC) and Uniflex Cables Ltd. Vs. CCE, Surat : 2011 (271) ELT 161 (SC).

4. The Revenue feeling aggrieved by the dropping of the levy of penalty by the adjudicating authority, filed an appeal before the Commissioner (Appeals-II), Chennai. The Commissioner (Appeals) vide the impugned order dated 30.06.2017 has allowed the appeal of the Revenue by setting aside the order passed by the adjudicating authority. It is the view of the ld. Commissioner (Appeals) that the assessee had not disclosed the fact of availing Cenvat credit on service tax paid on construction services provided to the department. Further, the ld. Commissioner (Appeals) as also held that the imposition of penalty under Section 11 AC is automatic and that the Asst. Commissioner had no description, as per the decisions of the Hon'ble Supreme Court in Dharmendra Textile Mills : 2008 (231) ELT 3 (SC) and Rajasthan Spinning & Weaving Mills : 2009 (238) ELT 3 (SC).

5. Seriously aggrieved by the levy of penalty by the ld. Commissioner (Appeals) the assessee is before this forum.

6. I have heard both sides and meticulously considered their arguments along with the submissions and case law relied on by both sides.

7. A careful consideration of the impugned order of the ld. Commissioner (Appeals) shows that the Commissioner (Appeals) considered the fact that the assessee had not disclosed the fact of its availing Cenvat credit of service tax paid on construction services provided to the department, which came to light only on due verification of accounts by the departmental audit. This observation, clearly, not supported by any evidence. As observed by me from the factual findings of the Asst. Commissioner at page-10 of his order that with regard to the definition of input service pertains to 'modernization, renovation or repairs of the factory qualifying as input service under the inclusive clause of Rule 2(1) of CCR, 2004 and a categorical finding by the Asst. Commissioner that in the present case the assessee had availed the construction services of repair of the factory which was based on input service invoices. Thus, it is a clear case where two views are possible as observed by the ld. Asst. Commissioner. Unfortunately, the ld. Commissioner (Appeals) has not shaken these factual findings arrived at by the adjudicating authority.

8. The ld. Commissioner (Appeals) has in his order not disputed the bona fides of the appellant in

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wrongful availment of Cenvat credit nor has he suspected the act of reversal of such credit availed before issuance of SCN. It is therefore a clear case of bona fide mistake in availing Cenvat credit for which no penalty is exigible. The Apex Court in its decisions relied on by the appellant in the cases of CCE, Trichy vs. Grasim Industries Ltd : 2005 (183) ELT 123 (SC) and Maruti Suzuki Vs. CCE, New Delhi : 2009 (240) ELT 641 (SC), CCE Vs. Kisan Mouldings Ltd.- 2010 (260) ELT 167 (SC) had repeatedly held that 'no penalty is imposable for a bona fide mistake in availing Cenvat credit. I am therefore of the considered view that the ld. Commissioner (Appeals) is not justified in levying penalty. I therefore restore the order of the Asst. Commissioner/adjudicating authority and set aside the penalty.
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