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TMI Blog2019 (5) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of payment of differential duty - Rule 7(1)(b) of CCR 2001 - HELD THAT:- There is no dispute that the differential duty has been paid by HVTL and the supplementary invoices issued. The reason cited by the Adjudicating Authority for denying the credit to TML is that the relevant Central Excise Rules did not provide for availment of Cenvat credit on such supplementary invoices. There is no justification for invoking extended period of limitation under Section 11A since there is nothing on record to allege suppression of facts. The Tribunal has also been consistently taking the view that credit is permissible on the basis of supplementary invoice even prior to 29.08.2000 when notification No. 51/2000 was issued - credit rightly availed. Appeal allowed - decided in favor of appellant. - E/285 And 287/2009 - FO/A/75502-75503/2019 - Dated:- 26-3-2019 - Shri P.K.Choudhary, Member (Judicial) And Shri V. Padmanabhan, Member (Technical) For the Appellant(s) : Shri Ravi Raghavan, Adv. Shri D. Sen, Adv. For the Respondent(s) : Shri S. Mukhopadhyay, Suptd.(AR) ORDER PER SHRI. V. PADMANABHAN: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) The adjudication of the show cause notice resulted in the issue of Order-in-Original dated 6.11.2006. When the said order was challenged before the CESTAT, in the first round of litigation, the Tribunal vide his order dated 16.01.2008 and 14.6.2007, remanded the matter for denovo decision. The impugned order was passed in the denovo proceedings. 3. The Adjudicating Authority upheld the proposal for demand of differential duty as proposed in the Show Cause Notice. In addition, he held that M/s. TML will not be entitled to avail Cenvat Credit of about ₹ 55 lakhs paid by HVTL by issue of supplementary invoices. This order is challenged both by HVTL (against the proposed demand of differential duty) and by M/s. TML (against portion of the order denying the Cenvat credit). Both appeals are taken up for a decision through this common order. 4. The appellants are represented by Shri Ravi Raghavan, Ld. Adv. along with Shri D. Sen, Ld. Adv. Revenue is represented by Shri S. Mukhopadhyay, Supdt. (AR). 5. The Ld. Advocate prayed for setting aside the impugned order and his main arguments are summarised below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial duty amounting to ₹ 55 lakhs was paid suo moto by HVTL and until the intimation of payment of this differential duty, the department did not undertake any investigation. The SCN also did not outline any specific reason for suppression and hence he submits that the entire demand is hit by timebar. 6. The Ld. D.R. on the other hand justified the order passed by the Lower Authority. His arguments are summarised below:- (i) He referred to the provision of Rule 6(b)(ii) of the Central Excise Valuation Rules 1975 which was applicable during the relevant disputed period. He emphasized the fact that this sub rule provided for addition of profit, if any, which the assessee would have normally earned on the sale of such goods. Relying on the decision of the Hon ble Supreme Court in the case of Chackolas Spinning and Weaving Mills Ltd. Vs- CCE, Cochin, 2015(322)E.L.T. 167 (SC), he submits that the actual profit of HVTL is not relevant but the rule provides for addition of the profit normally earned on the sale of such goods. He accordingly justifies the addition of notional profit of 15%. (ii) With reference to the discounts claimed fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d such quantification and worked out the demand of Excise duty amounting to ₹ 90.84 lakhs as follows: Sl. No. Particulars Amount (Rs. In Lakhs) 1. Duty demanded u/s 11A proviso invoked 90.84 2. Amount paid before issue of Show Cause Notice 55.18 3=1-2 Difference 35.66 4 Amount representing 15% notional profit 16.13 5=3-4 Amounting representing discount 19.53 10. After considering the detailed argument from both sides, we are of the view that the dispute may be decided by consideration of the argument of time bar advanced on behalf of the appellants. The SCN dated 13.10.2004 proposed demand of differential duty fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices. The Adjudicating Authority has denied the credit under the said provisions by taking the view that differential duty was paid but the same falls within the exception in Rule 7(1)(b). The exception denies the credit on supplementary invoice if the additional amount of duty became recoverable on account of any non-levy or short levy by reason of fraud, collusion or any wilful mis-statement or suppression of facts with intent to evade payment of duty. 14. We have observed that there is no justification for invoking extended period of limitation under Section 11A since there is nothing on record to allege suppression of facts. The Tribunal has also been consistently taking the view that credit is permissible on the basis of supplementary invoice even prior to 29.08.2000 when notification No. 51/2000 was issued. This view finds support in the decision in the case of Jindal Vijaynagar Steels Limited Vs. Commissioner of Central Excise, Belgaum 2004(174) ELT 189 (T) 15. In view of the above discussion, we find no infirmity in the availment of Cenvat credit by TML on the basis supplementary invoice issued by HVTL. 16. In the result t ..... 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