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TMI Blog2022 (12) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... ilful mis-statement, etc. As per Rule 57AE, the Cenvat credit on the supplementary invoice was allowed however, an exception is provided that if at the supplier s end the duty paid which was earlier short paid or non-paid by reason of suppression of fact, fraud, collusion or wilful mis-statement, etc, the supplementary invoice issued in respect of that duty shall not be admissible for allowing the credit at the recipient s end. Now, the only fact to be verified is that whether the duty paid by the Tuticorin unit of the appellant was short paid or non-paid due to reason of suppression of fact, fraud, collusion or wilful mis-statment, etc. The adjudicating authority in the present case who has passed the impugned order is not competent to decide that whether the duty paid by the supplier unit is due to reason of suppression of fact, fraud, collusion or wilful mis-statement, etc. It is seen that the demand of duty on the Tuticorin unit was not confirmed by invoking proviso to Section 11A(1). Moreover, 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 adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand was confirmed under Section 11A(2) of the Act. After the issuance of SCNs and few days before the adjudication order, M/s Sterlite, Tuticorin paid the amount of duty in the month of March, 2001 and issued supplementary invoices in favour of the appellant s unit M/s Sterlite, Silvasa unit (Appellant) who in turn took credit of the duty in their cenvat credit account. 1.2 Appellant was issued show cause notice for denial of cenvat credit on the ground that the in terms of erstwhile Rule 57AE of Central Excise Rules, 1944, Cenvat Credit is not admissible on supplementary invoices where additional amount of duty become recoverable from manufacturer or importer of inputs or capital 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 Central Excise Act,1944 or rule made thereunder with an intent to evade payment of Central Excise Duty. The adjudicating authority vide order dated 14.09.2006 confirmed the cenvat demand, interest and imposed penalty. The said order was challenged by Appellant before the Tribunal and vide Final Order dated 16.04.2009 matter was remanded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, therefore, totally untenable. 2.4 He also submits that department did not allege fraud, collusion, willful suppression of facts with any intention to evade payment of duty on the part of the Tuticorin unit is also evident from the facts that the demand for differential duty of excise in the 9 show cause notices, covering the period May 1997 to June 2000, was not raised by invoking the proviso to Section 11A(1) of the Central Excise Act, 1994, which otherwise contains identical ingredients of fraud, suppression etc, as that of Rule 57AE(1)(i) ibid. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. As per Rule 57AE, the Cenvat credit on the supplementary invoice was allowed however, an exception is provided that if at the supplier s end the duty paid which was earlier short paid or non-paid by reason of suppression of fact, fraud, collusion or wilful mis-statement, etc, the supplementary invoice issued in respect of that duty shall not be admissible for allowing the credit at the recipient s end. Now, the only fact to be verified is that whether the duty paid by the Tuticorin unit of the appellant was short paid or non-paid due to reason of suppression of fact, fraud, collusion or wilful mis-statment, etc. In our view, the adjudicating authority in the present case who has passed the impugned order is not competent to decide that whether the duty paid by the supplier unit is due to reason 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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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