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2021 (2) TMI 365 - AT - Central ExciseCENVAT Credit - supplementary invoice - Suppression of facts or not - Departments sought to deny the Cenvat Credit on the ground that there is a suppression of fact on the part ofSupply of goods in payment of duty, therefore, for availing Cenvat Credit by the appellant Rule 9 (1) (b) of Cenvat Credit Rules, 2004 gets attracted - HELD THAT - In case where the supplementary invoice is issued by the manufacturer in respect of the additional amount of Excise Duty which has been paid which became recoverable on account of any non-levy or short levy by reason of fraud, collusion or any wilful misstatement or suppression of fact or contravention of any provision of the Excise Act or rule made there under with intent to evade payment of duty, the Cenvat Credit is not allowed of such supplementary invoice. There is merit in the submission made by the appellant that in case where goods are not sold and supplementary invoice is raised above Rule 9 (1) (b) of Cenvat Credit Rules, 2004 cannot be invoked in such circumstances - Also the issue is squarely covered in the decision in the case of KARNATAKA SOAPS AND DETERGENTS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE 2010 (2) TMI 524 - KARNATAKA HIGH COURT as well as COMMISSIONER OF CUS. C. EXCISE, HYDERABAD-IV VERSUS JAIRAJ ISPAT LIMITED 2008 (2) TMI 440 - ANDHRA PRADESH HIGH COURT where it was held that even if differential duty was paid on account of intention to evade duty the credit cannot be denied to recipients when the goods were not sold to them but only stock transferred. There is no allegation or finding in the impugned order that such goods were sold to the appellant by M/s Nirayu Pvt Ltd on which the disputed credit was availed. Credit allowed - Appeal allowed - decided in favor of appellant.
Issues:
1. Denial of Cenvat credit to the appellant based on Rule 9(1)(b) of CENVAT Credit Rules, 2004. 2. Interpretation of Rule 9(1)(b) in the context of intention to evade duty. 3. Application of case laws to support contentions regarding the denial of credit. 4. Assessment of the penalty imposed on M/s Nirayu Pvt Ltd. and its impact on the appellant's eligibility for Cenvat credit. Analysis: Issue 1: The appellant's denial of Cenvat credit under Rule 9(1)(b) of CENVAT Credit Rules, 2004 was based on the contention that the credit was not eligible due to the intention to evade duty by M/s Nirayu Pvt Ltd. The department argued that since the Hon'ble Gujarat High Court imposed a penalty equal to duty under Section 11AC of the Central Excise Act, 1944 on M/s Nirayu Pvt Ltd., there was an intention to evade duty, thereby invoking Rule 9(1)(b). Issue 2: The tribunal analyzed Rule 9(1)(b) in detail and observed that the rule prohibits Cenvat credit in cases where additional duty became recoverable due to fraud, collusion, wilful misstatement, or suppression of facts with intent to evade payment of duty. However, the tribunal found merit in the appellant's argument that when goods are not sold but only transferred, Rule 9(1)(b) cannot be invoked. The tribunal also noted that relevant case laws supported this interpretation. Issue 3: The appellant relied on various case laws, including Karnataka Soaps & Detergents Ltd and Jai Raj Ispat Ltd, to support the contention that Cenvat credit cannot be denied to recipients when goods were not sold but only transferred. The tribunal found that the issue was squarely covered by the case laws cited and the interpretation aligned with the decisions in the referred cases. Issue 4: The tribunal considered the penalty imposed on M/s Nirayu Pvt Ltd. by the Hon'ble Gujarat High Court and its impact on the appellant's eligibility for Cenvat credit. Despite the penalty, the tribunal concluded that there was no evidence to suggest that the goods in question were sold to the appellant, and hence, the denial of credit under Rule 9(1)(b) was not justified. The tribunal set aside the impugned order and allowed the appeal, emphasizing that the issue was covered by the case laws cited and the appellant's contentions. In conclusion, the tribunal's detailed analysis of Rule 9(1)(b) in the context of intention to evade duty, supported by relevant case laws, led to the setting aside of the denial of Cenvat credit to the appellant. The judgment highlighted the importance of considering specific circumstances, such as the transfer of goods without sale, in determining the applicability of rules governing Cenvat credit eligibility.
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