2017 (5) TMI 502 - AT - Central Excise

CENVAT credit - supplementary invoices - demand on the ground that the vendors have never amortized the additional cost of capital goods on their own - Held that - the element of suppression of fact by the vendors is not established and the supplementary invoices issued by them cannot be said to be tainted with the element of suppression in Section 11AC - there was no suppression on the part of the vendors - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Entitlement to Cenvat credit for differential duties paid by the appellant.
2. Alleged suppression of facts by vendors regarding amortization of capital goods costs.
3. Confirmation of demand and penalty imposition under Rule 13 of Cenvat Credit Rules, 2004.

Entitlement to Cenvat Credit:
The appellant imported capital goods under the EPCG Scheme and later paid differential duties due to non-fulfillment of export obligations. The appellant issued supplementary invoices to vendors who, in turn, issued invoices back after depositing the differential duty. The Department disputed the appellant's entitlement to Cenvat credit of ?35,15,367 based on these supplementary invoices. The Commissioner (Appeals) confirmed the demand and imposed a penalty. The appellant contended that the vendors did not suppress facts and cited judgments related to these vendors from High Courts and Tribunals, indicating no mala fide intention. The Tribunal noted that the vendors' actions did not establish suppression, overturning the Commissioner's decision and allowing the appeal.

Suppression of Facts by Vendors:
The issue revolved around whether the vendors suppressed facts by not amortizing the additional costs of capital goods in the value of components. The Commissioner (Appeals) upheld the demand and penalty, citing suppression by vendors. However, the Tribunal analyzed judgments related to the vendors and found no mala fide intention in not amortizing the costs. The Tribunal highlighted cases where the Department's appeals against vendors' judgments failed in High Courts, indicating no suppression. Consequently, the Tribunal concluded that the vendors' actions did not demonstrate suppression, leading to the reversal of the Commissioner's decision.

Confirmation of Demand and Penalty Imposition:
The appellant's appeal challenged the confirmation of demand and penalty imposition under Rule 13 of the Cenvat Credit Rules, 2004. The Commissioner (Appeals) upheld the demand and penalty based on the alleged suppression of facts by vendors. However, the Tribunal, after considering relevant judgments and lack of mala fide intention on the vendors' part, set aside the Commissioner's order as unsustainable. The Tribunal allowed the appeal, indicating that the vendors' actions did not warrant the confirmed demand and penalty imposition, thereby ruling in favor of the appellant.