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2016 (10) TMI 298 - AT - Central ExciseReopening of order passed by Settlement Commission - order of settlement or adjudication order? - whether the order passed by the Settlement commission can be reopened? - Held that - the order passed by the Settlement Commission is not an adjudication order and as per section 127J of the Customs Act, 1962 is an order of settlement between the department and the assessee and it cannot be reopened. The decision of the Hon ble High Court of Bombay in Indorama Synthetics (India) Ltd. vs. UOI 2013 (1) TMI 100 - BOMBAY HIGH COURT apply where it was held that the order of the Settlement Commission is not an adjudication order and is settlement of the case. Availing of cenvat credit on the amounts settled before the Settlement Commission is not barred by any provision of the Cenvat Credit Rules, 2004 - no reason found to interfere in the reasoned order passed by the first appellate authority - appeal rejected - decided against appellant.
Issues: Allegation of ineligibility for cenvat credit due to countervailing duty recovery after fraud allegation.
Analysis: The issue in this case revolves around the eligibility of the respondent for cenvat credit following the recovery of countervailing duty due to allegations of fraud, misstatement, or suppression of facts. The respondent had imported goods under a concessional rate of duty but was later found ineligible for the exemption after an investigation by the DRI. A show-cause notice was issued, leading to the respondent settling the matter with the Settlement Commission by paying the required customs duty/CVD and other duties. The respondent then availed cenvat credit on the CVD paid. The revenue contended that the respondent was not entitled to the CVD credit due to the extended period invoked by the show-cause notice and the alleged suppression of facts. The adjudicating authority confirmed the demands, but the first appellate authority disagreed, stating that the settled amount could not be reopened. The Departmental Representative argued that Rule 7 of the Cenvat Credit Rules barred the entitlement to cenvat credit in cases of suppression of facts. He relied on the decision in the case of Indorama Synthetics (India) Ltd. vs. UOI and the judgment of the Larger Bench Tribunal in Bosch Chassis Systems India Ltd. to support this position. On the other hand, the respondent's counsel cited the Tribunal's decision in the case of Indian Oil Corporation Ltd. and the judgment of the Delhi High Court in Ashwani Tobacco Co. Pvt. Ltd. to argue that settlement before the Settlement Commission did not imply admission of guilt, and therefore, the cenvat credit availed was valid. The Tribunal found merit in the counsel's argument that denying cenvat credit on the CVD paid in compliance with the Settlement Commission's order would essentially reopen a settled issue. Referring to the decision of the Bombay High Court in Indorama Synthetics (India) Ltd., the Tribunal emphasized that the Settlement Commission's order was not an adjudication order but a settlement between the department and the assessee. Availing cenvat credit on the settled amounts was not prohibited by the Cenvat Credit Rules. Consequently, the Tribunal upheld the first appellate authority's decision, rejecting the appeal and affirming the impugned order. In conclusion, the Tribunal's analysis focused on the nature of the Settlement Commission's order, the validity of cenvat credit availed post-settlement, and the absence of provisions prohibiting such credit under the Cenvat Credit Rules, leading to the dismissal of the appeal.
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