2014 (7) TMI 191 - AT - Central Excise

Waiver of pre deposit - cenvat credit - duty paying documents - supplementary invoice - payment of duty due to fraud, suppression of facts etc. - Held that - M/s. Saint Gobain Glass India Pvt. Ltd. issued the invoice after initiation of the proceedings by the central excise authorities. The question is that whether the said invoice would cover under Rule 9(1)(b) of the Rules. Rule 9(1)(b) of the said Rule provides that a manufacturer may avail the credit on the basis of the supplementary invoice except where the additional amount of duty became recoverable from the manufacture on account of any non-levy or short-levy by reason of fraud, collusion or any willful mis-statement or suppression of facts or contravention of any provisions of the Excise Act or the Customs Act, 1962 or the rules made thereunder with intent to evade payment of duty. In the instant case, it is seen that M/s. Saint Gobain Glass India Pvt. Ltd. issued the invoice after initiation of the proceedings. In view of that, the applicant has failed to make out a prima facie case for waiver of entire amount of duty along with interest and penalty. - stay granted partly.

Summary

Issues Involved:
1. Eligibility of the applicant to avail CENVAT credit under Rule 9(1)(b) of the CENVAT Credit Rules, 2004.
2. Interpretation of the term "supplementary invoice" in the context of CENVAT credit availed.
3. Prima facie case for waiver of predeposit of duty, interest, and penalty.

Issue 1: Eligibility of the applicant to avail CENVAT credit under Rule 9(1)(b) of the CENVAT Credit Rules, 2004:

The applicant, engaged in manufacturing Wooden Crates, received Dunnage from another company under a challan for use in their manufacturing process. Subsequently, a proceeding was initiated against the supplying company for irregular CENVAT credit availment. The applicant availed credit based on invoices issued by the supplying company. The adjudicating authority denied the credit, stating that as proceedings were against the supplier, the applicant was not eligible under Rule 9(1)(b). The Commissioner (Appeals) upheld this decision. The applicant argued that since the supplier had paid the amount and reversed the credit, Rule 9(1)(b) did not apply. The Tribunal analyzed the situation and found that the applicant failed to establish a prima facie case for waiving the duty, interest, and penalty. The Tribunal directed the applicant to predeposit a specified amount.

Issue 2: Interpretation of the term "supplementary invoice" in the context of CENVAT credit availed:

The dispute centered around whether the invoices issued by the supplying company after the initiation of proceedings could be considered as supplementary invoices. The applicant contended that Rule 9(1)(b) did not apply as they did not avail credit based on supplementary invoices. The supplying company had accepted the offense, reversed the credit, and then issued the invoices. The Tribunal examined the timing of the invoices and the provisions of Rule 9(1)(b) which allow credit based on supplementary invoices. Ultimately, the Tribunal concluded that the invoices issued post-proceedings initiation did not meet the criteria for waiver of the entire amount of duty, interest, and penalty.

Issue 3: Prima facie case for waiver of predeposit of duty, interest, and penalty:

The Tribunal's decision hinged on whether the applicant could demonstrate a strong case for waiving the predeposit of duty, interest, and penalty. Despite arguments from both sides regarding the timing and nature of the invoices, the Tribunal found that the applicant had not met the threshold for a complete waiver. Consequently, the Tribunal directed the applicant to predeposit a specific amount within a set timeframe, with the remainder of the duty, interest, and penalty being waived pending the appeal process. This decision was based on a thorough review of the facts, legal provisions, and precedents cited by both parties during the proceedings.

This detailed analysis of the judgment highlights the key legal issues, arguments presented by the parties, and the Tribunal's reasoning leading to the final decision regarding the waiver of predeposit of duty, interest, and penalty in the context of CENVAT credit availment.