2018 (11) TMI 69 - AT - Central Excise

CENVAT Credit - inputs imported without payment of duty found short - denial on the ground that issue having settled the matter before the Settlement Commission, there can not be any availment of CENVAT credit on the amounts so paid as full duty. Held that - There is no allegation of diversion of the materials/inputs procured without payment of customs duty nor there is any allegation that there was clandestine manufacture and clearance of finished goods out of the inputs found short during the visit of the DRI Officers. Similar issue was decided by the Tribunal in the case of Shreem Capacitors Pvt. Ltd. 2016 (10) TMI 298 - CESTAT MUMBAI , where it was held that Availing of cenvat credit on the amounts settled before the Settlement Commission is not barred by any provision of the Cenvat Credit Rules, 2004 Credit allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Denial of CENVAT credit on inputs imported under advance license scheme
- Settlement before Settlement Commission and subsequent availment of CENVAT credit
- Allegations of suppression of facts and misstatement

Analysis:
- The appeal challenged the denial of CENVAT credit by lower authorities based on the settlement before the Settlement Commission. The appellant, engaged in manufacturing aluminum extrusions, imported inputs under an advance license scheme without paying customs duty. Shortages in the imported inputs were noticed during an investigation, leading to demands for customs duty. The appellant settled the matter before the Settlement Commission and paid the duty, subsequently availing CENVAT credit. The issue was whether the denial of CENVAT credit was justified.
- The appellant's counsel argued that the denial of CENVAT credit was unfounded as the rules did not prohibit such credit. It was highlighted that the inputs were received in the factory, evidenced by documents, and there was no diversion or clandestine activity. The Departmental Representative contended that settlement before the Commission precluded availing CENVAT credit, citing the decision in Sanghvi Reconditioners Pvt. Ltd. vs. Union of India. The Settlement Commission's decision was considered final, and reopening the issue was opposed.
- The Tribunal analyzed a similar case involving Shreem Capacitors Pvt. Ltd., where CENVAT credit was denied post-settlement before the Commission. The Tribunal's decision emphasized that settlement did not preclude availing CENVAT credit, as it was not an admission of guilt. The Settlement Commission's order was viewed as a settlement, not an adjudication, and availing credit on settled amounts was permissible. The Tribunal upheld the appellant's appeal, setting aside the lower authorities' decision based on settled precedents and legal interpretations.
- The judgment underscored that denying CENVAT credit on settled amounts would effectively reopen resolved issues. Rulings from the Hon'ble High Court and Tribunal decisions supported the appellant's position. The Settlement Commission's order was deemed a settlement, not an adjudication, allowing for the availing of CENVAT credit. The impugned order was set aside, and the appeal was allowed in favor of the appellant.