2010 (7) TMI 426 - AT - Central Excise

Cenvat credit Supplementary invoices Demand realized against supplier alleging suppression and hence credit denied on supplementary invoices to assessee - raised supplementary invoices for the discharge of duty liability on the product Dough which he had cleared to appellant without payment of duty, during the relevant period despite tariff entry indicating the said product was attracting duty - lower authorities have sought to recover the cenvat credit only on the ground that the main manufacturer had gone to the Settlement Commission and the Settlement Commission in its order held that the manufacturer had cleared the goods clandestinely and that the manufacturer had no intention to pay the duty - the 11C Notification issued by the Govt. of India would clearly cover the issue as to there was always an intention to exempt these goods and if that intention was there, then the manufacturer M/s. Australian Foods Ltd., need not have paid the duty but having paid the duty, today the appellant cannot be denied the benefit of cenvat credit and the same cannot be questioned by the Revenue. - order upholding the reversal of the credit taken, liable to be set aside

Summary

Issues:
- Eligibility of Cenvat credit on supplementary invoices
- Interpretation of Rule 9 of Cenvat Credit Rules, 2004
- Impact of Settlement Commission's order on the case
- Relevance of 11C Notification issued by the Govt. of India
- Admissibility of penalty in Revenue's appeal

Analysis:

The case involves a dispute over the eligibility of Cenvat credit on supplementary invoices issued by the manufacturer of "Dough" to the appellant. The appellant availed the credit, but the original authority raised demands due to alleged suppression by the manufacturer. The ld. Commissioner (Appeals) upheld the demand, citing Rule 9(b) of Cenvat Credit Rules, 2004, but set aside the penalty.

The appellant contended that the credit taken on supplementary invoices was valid as the duty was discharged by the principal supplier. They argued that a Settlement Commission's order, which was relied upon by the authorities, had been set aside by the High Court. Additionally, they pointed to a government notification exempting "Dough" from duty for a specific period.

The Jt. CDR supported the lower authorities' findings and highlighted Rule 9 of Cenvat Credit Rules, stating that the credit should not have been taken due to non-discharge of duty by the manufacturer of "Dough."

Upon review, the Tribunal found that the manufacturer had raised supplementary invoices to discharge duty liability on "Dough" cleared to the appellant without payment of duty. However, subsequent legal developments, including the High Court's decision and the government's notification, indicated that the manufacturer's actions were in line with the law. Therefore, the Tribunal set aside the order upholding the reversal of the credit.

Regarding the Revenue's appeal on the penalty, since the order upholding the credit reversal was set aside, the appeal was rejected, and the penalty imposition did not stand. Consequently, the appellant's appeal was allowed, and the Revenue's appeal was rejected, providing consequential relief to the appellant.