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TMI Blog2018 (11) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... inputs and capital goods as per CENVAT Credit Rules, 2004; imported certain inputs under advance licence scheme without payment of applicable customs duty, in terms of Notification No. 93/2004-Cus, dated 10.09.2004; during an investigation it was noticed that on stock verification the inputs imported without payment of duty were found short. Proceedings were initiated to demand appropriate customs duty on raw material found short. Appellant on receipt of show cause notice, approached the Settlement Commission for settling the case as provided under section 127 of the Customs Act, 1962 accepted the shortages pointed out by DRI. Subsequently on making the payments of customs duty as per the direction of the Settlement Commission, appellant av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory of the appellant as can be seen from the first show cause notice issued by DRI. It is his submission that the inputs were received in the factory and has been evidenced by various documents by appellant before the lower authorities in the proceedings initiated by DRI and also before the lower authorities in this appeal. It is his submission that the ratio of the decision of the Tribunal in the case of CCE, Pune-II vs. Shreem Capacitors Pvt. Ltd. [2017(348)E.L.T 355 (Tri.-Mumbai)] and reads exhaustively on the said decision. He submits that even the adjudicating authority has recorded that appellant had produced various documents to show receipt of the goods in the factory premises. It is his submission that in order to get thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of records, we find that the only issue that arises for consideration by this Bench in the present appeal is whether the reasoning adopted by lower authorities for denying the CENVAT credit availed by the appellant are correct or otherwise. Undisputed facts are that appellant availed the benefit of Customs Notification by procuring inputs without payment of duty under Advance Licence Scheme; that the goods were received in the factory premises and accounted for in the records maintained; that there was shortage of inputs when the officials of DRI visited the premises of the appellant; show cause notice issued by DRI demanding the customs duty for the shortages of the material was settled by the appellant in the Settlement Commission; they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e DRI it was noticed that the respondent is not eligible for the said exemption. A show-cause notice was issued to the respondent who settled the issue by taking the matter to the Settlement Commission and paid the customs duty/CVD and other duties as directed by the Settlement Commission. The respondent availed the cenvat credit of such CVD paid by them in furtherance of the order of the Settlement Commission. It is the case of the revenue that respondent is not eligible for CVD credit as the said CVD was paid after the issuance of show-cause notice which invoked the extended period and alleged suppression and misstatement of facts. Ld. adjudicating authority confirmed the demands raised. First appellate authority held that the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct. He would submit that it has been held by the Hon'ble High Court of Delhi in Ashwani Tobacco Co. Pvt. Ltd. 2010 (251) ELT 162 that the Settlement Commission is not an adjudicating authority and order of settlement is not an adjudication order. 6. We have considered the submission made by both sides. 7. We find that the first appellate authority has in para 4 and 5 of the impugned order recorded clearly how the order passed by the Settlement Commission is not an adjudication order and as per section 127J of the Customs Act, 1962 is an order of settlement between the department and the assessee and it cannot be reopened. 8. We find strong force in the contention of the counsel that denying cenvat credit which is availed of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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