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TMI Blog2011 (6) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... proaching to the Settlement Commission, the allegation has not been proved against M/s. CPCL, as the allegation of the show-cause notice remained unproved. As the allegation against M/s CPCL has not been proved, the denial of CENVAT credit under Rule 9(1)(b) to the appellant is not sustainable. appeal allowed X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(1)(b) of the CENVAT Credit Rules, 2004 on account of non-levy or short levy by reason of fraud, collusion or any willful misstatement or suppression of facts or contravention of law with intent to evade payment of duty. Accordingly, show-cause notice was issued, demands were confirmed along with interest and penalty. Against the said order the appellant is before us. 4. Shri M.H. Patil, learned Advocate for the appellant submitted that the Settlement Commission has given immunity from penalty and prosecution to M/s. CPCL, therefore the allegation of suppression is not sustainable against M/s CPCL. He further submitted that similar proceedings were also initiated against the Chennai Unit of the appellant. Consequent to the order of sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -cause notice, same is applicable to the facts of this case also. He also submits that if the earlier judgement has not been appealed against, subsequently passed judgement cannot be sustained. To support this contention, he relied on Birla Corporation vs. CCE - 2005 (186) ELT 266 (SC) and CCE v. Novapan Industries - 2007 (209) ELT 161 (SC). 5. On the other hand, Shri Y.K. Agarwal, learned SDR on behalf of the Revenue has submitted that the Commissioner of Central Excise, Chennai simply relied on the order of Settlement Commission which itself did not go into the merits of the show-cause notice issued to M/s. CPCL while settling the matter. The Chennai Commissioner also relied on the decision of this Tribunal in the case of Essar Steel Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Settlement Commission and without accepting the allegation in the show-cause notice, opted to settle the matter by paying duty and the interest which has been considered by the Settlement Commission while settling the issue wherein M/s. CPCL has been given immunity from penalty and prosecution. Therefore, the allegation of suppression has not attained finality as the same has not been adjudicated. The allegation of suppression has been considered by the Commissioner of Chennai in his order as under:- "The question whether such additional amount of duty become recoverable from the manufacturer on account of short levy by reason of fraud etc. will not have relevance in view of the Settlement order issued by the Settlement Commission. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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