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TMI Blog2012 (2) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... has settled the issue and not decided or established the allegations of suppression, etc. On this point, the action taken by the Appellant cannot be faulted, since the proceedings before the Settlement Commission were conclusive. So far as the availment of CENVAT Credit on the strength of supplementary invoices dated 30-6-2006 is concerned, undisputedly they have taken the credit only on 31-7-2006 on the date when the duty had been paid by M/s. CPCL - We find that in the Appellant’s own case on the same issue (2011 (6) TMI 520 - CESTAT, MUMBAI) has been decided by the Co-ordinate Bench of the Tribunal at Mumbai, while relying upon the decision in the case of Bosch Chassis Systems (India) (2008 (9) TMI 106 - CESTAT NEW DELHI). In these circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion also granted them immunity from imposition of penalty and prosecution under Central Excise Act, 1944. A show cause notice dated 24-7-2007 was also issued to the Appellant by the Commissioner of Central Excise, Kolkata-VI, alleging that the Appellant had wrongly availed and utilized the CENVAT Credit of Rs. 4,20,15,654.00, since the differential duty for which the supplementary invoices were issued, was recoverable from M/s. CPCL on account of non-levy or short-levy of duty by reason of wilful mis-statement or suppression of facts with intent to evade payment of duty. The case of the Department is that the Appellant took credit of additional duty paid by M/s. CPCL and the Appellant were not entitled to take the credit on the strength o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court of Gujarat in the case of Commissioner of Central Excise and Customs, Surat-I v. Essar Steel Ltd. reported in 2011 (269) E.L.T. 331 (Guj.). 5. The learned AR contended that it is pertinent to note that the suppression of facts raised in the show cause notice was not adjudicated due to the fact that M/s. CPCL had approached the Settlement Commission. In these circumstances, the facts of suppression remained not determined, and this had given rise to a peculiar situation which had not been settled. The contention of the learned AR is that the Appellant had availed the Cenvat credit on the strength of supplementary invoices dated 30-6-2006, whereas the duty was paid on 31-7-2006, which is against the provisions of Rules 9(1)(b) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3 of the Customs Tariff Act, has been paid except where the additional amount of duty became recoverable from the manufacturer or importer of inputs or capital goods on account of any non-levy or short levy by reason of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any provisions of the Excise Act, or of the Customs Act, 1962 (52 of 1962) or the rules made thereunder with intent to evade payment of duty. 8. We agree with the contention of the Appellant that the allegations were not established at any stage and they remained allegations only. The Settlement Commission has settled the issue and not decided or established the allegations of suppression, etc. On this point, the action taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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