VANDANA AUTO Vs. CCE & ST-RAIPUR

JUDGEMENT

(1.) APPELLANTS have come in appeal against Commissioner (appeal)'s order 184(ST)/RPR -I/2013 dated 23/10/2013 wherein Commissioner (appeal) rejected the appeal but waived the penalty under section 76 of the Finance Act. Appellant is engaged in providing taxable service in the category of authorised service station as defined under section 67 of the Chapter 5 of the Finance Act. Adjudicating Authority disallowed the service tax credit of Rs. 1,64,867/ - and ordered for recovery under provisions of section 73 of the Finance Act along with interest under section 14 of the CENVAT Credit Rules, 2004. Amount of credit of Rs. 37080/ - which was reversed of Real Estate Service was ordered to be appropriated against total credit disallowed. Penalty under provision 76 of Finance Act, 1954 and penalty of Rs. 1,64,867/ -, under section 67 of the Finance Act, was also imposed.

(2.) LD . Counsel pleaded that they were engaged in the sale of motor vehicles of M/s. Bajaj Auto Limited Pune and were simultaneously engaged in providing service of various service station. He also requested that they should have been granted proportional credit on items which was used in the services for authorized service station. It was fairly agreed that but for audit availment of these are not voluminous of credit by them would not have come to the notice of the department.

(3.) I have examined all the aspects as given in Order -in -Appeal as well as raised during submissions before the Bench by both sides. It is an admitted fact that major activity of the appellant was sale of motor vehicles and providing services incidental to that. They have not maintained separate record for sale of vehicles as well as for providing authorized service station. As per discussion above, it has clearly come out that most of the input service credit taken by them related to the activities of the sale of vehicles. There are a few activities out of which some proportion of the service has been used for repairing or maintenance but it has come out that no separate record in this regard have been maintained. This matter has been examined by the Commissioner (appeal) in his order in detail at para 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10 and 5.11. It was also placed before the Bench that wrong availment of input service credit came to the notice of department only when the detailed audit of the Unit was undertaken. But for audit, wrong availment could not have been detected.