9911796707
TMI Blog2022 (12) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... gence that M/s. Sterlite Industries (India) Ltd., Tuticorin has raised supplementary invoices in favour of Appellant i.e. M/s Sterlite, Silvasa (Now known as M/s Vedanta Ltd.) for differential duty paid by them on account of short payment of Central Excise Duty on clearance of 'Copper Anode' during May,1997, to June, 2000, after issuance of show cause notice for under-valuation of 'Copper Anode' and suppression of actual cost of production. On scrutiny of the invoices produced by the assessee, it was observed by the department that during April, 2001, M/s Sterlite, Silvasa has availed Cenvat Credit amounting to Rs. 15,06,93,732/- on the strength of supplementary Invoices issued by M/s. Sterlite, Tuticorin. It was also observed that for shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judication. 1.3 In such denovo adjudication, the Learned Commissioner vide impugned Order-in-Original held that the appellant has wrongly availed credit and confirmed the demand along with interest and imposed equal amount of penalty. A separate penalty of Rs. 5,00,000/- was imposed on Shri Ramesh Nair , Associates General Manager (Commercial) of the Appellant and of Rs. 1,00,000/- on Shri K.V. Rao, Associate Manager (Commercial), Authorized Signatory of the appellant under Rule 209A of the erstwhile Central Excise Rules, 1944. Aggrieved by the said order-in-original, the appellants are before this Tribunal. 02. Shri Vishal Jain & Ms. Dimple Gohil, learned counsels appearing for the appellant submits that there is no allegation of finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BIC in its circular bearing No. 1071/4/2019-CX.8 dated 28.08.2019. 2.3 He further submits that credit availed by the appellant on the supplementary invoices issued by the Tuticorin units is totally correct and is not hit by the exclusion provided in Rule 57AE(1)(ii) of the erstwhile Central Excise Rules, 1944. That inasmuch as there is no allegation of any fraud, collusion, willful suppression etc., on the part of the Tuticorin unit with any intent to evade payment of duty in any of the 9 show cause notices issued to the Tuticorin unit, covering the period May 1997 to June 200, in respect of which the Tuticorin unit had paid differential duty, the impugned order denying credit availed by the appellant of such differential duty is, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise? It can be noted from the Rule 57AE(1)(i) of Central Excise Rules,1994 that Cenvat credit on supplementary invoices can be denied only if duty become recoverable from the manufacturer on account of any non-levy or short levy by reason of fraud, collusion or any willful mis-statement or suppression of facts or contravention of any provisions of the Act and Rules made thereunder with intent to evade payment of duty. In the present matter the Learned Commissioner in his impugned order observed that the adjudicating authority having jurisdictional over the supplier unit at Tuticorin, has clearly established that the unit at Tuticorin suppressed facts with intent to evade payment of differential duty before the department conducted Cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son of suppression of fact, fraud, collusion or wilful mis-statement, etc. This issue has to be decided by the jurisdictional adjudicating authority of the supplier unit against which the proceedings of demand of short paid duty was initiated therefore, it is necessary to analyze the case of supplier's unit with regard to non-payment or short payment of duty which subsequently paid by the Tuticorin unit and for which the supplementary invoices were issued which are the subject matter in the present case. 4.2 On perusal of the show cause notices issued and the adjudicating order passed by Tuticorin jurisdictional adjudicating authority, it was observed that nine show cause notices were issued for the period May, 1997 to June,2000, all these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over, though the penal provision of Section 11AC was operative during the period May, 1997 to June, 2000 but the same was neither invoked in the show cause notice nor confirmed in the adjudication order dated 30.03.2017. With this undisputed fact, it is absolutely clear that the duty paid by the appellant is against the duty demand made from the Tuticorin unit for which there is no charge of suppression of fact, fraud, collusion or wilful mis-statement, etc. exist and there was no adjudication on the same. With this fact, it is clear that the duty of Rs.15,06,93,732/- paid by the appellant's Tuticorin unit which was passed on to the appellant's unit by issuing the supplementary invoice is not due to reason of suppression of fact, fraud, col ..... X X X X Extracts X X X X X X X X Extracts X X X X
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