TaxTMI 
TaxTMI 
2008 (6) TMI 389
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....and Pune units. After processing, the products are cleared to M/s. Maruti Udyog Ltd. on payment of duty based on prices indicated by Maruti Udyog in the purchase orders. 3. Having briefly indicated the nature of the activities, we do not consider it necessary to state further details of the case as, by the present order, we propose to refer this appeal to Larger Bench. 4. The dispute relates to taking of Cenvat credit of the differential duty paid by the Jalgaon and Pune units of the appellant. By the order impugned, Cenvat credit has been denied on the ground that the differential duty had been paid towards short payment of duty on account of suppression of facts in order to avail the irregularly availed of Cenvat credit and to evade the duty as per proviso to Section 11A(1) of the Central Excise Act. 5. Cenvat Credit Rules, 2002 (later replaced by the Rules of 2004, containing similar provision), inter alia, lay down the eligibility and manner and procedure for availing of Cenvat credit. Rule 7 (Rule 9 of the new Rules) specifies the documents on the basis of which Cenvat credit can be taken by a manufacturer. One of the documents is 'supplementary invoice' in r....
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....itled to take Cenvat credit of the duty so paid. However, as Cenvat credit can be taken only on the basis of specified documents, and in terms of clause (b) of Rule 7(1) a 'supplementary invoice' in respect of payment of additional duty is an admissible document but subject to the exception amended therein, it would follow that in view of the embargo, where additional duty has been paid on account of non-levy or short-levy etc. by reason or fraud, collusion, wilful misstatement or suppression of facts etc., Cenvat credit cannot be claimed on the basis of 'supplementary invoice' in respect of such additional duty. 8. In support of the appellants' case reliance was placed on Siddarth Tubes Ltd. v. CCE - 2008 (228) E.L.T. 193 (Tribunal) = 2008 (86) RLT 358. Our attention was drawn particularly to paragraph 25 of the judgment. In paragraph 25 it was held that in the case of stock transfer of goods from one unit to another, as in the present case, the ratio of the decision in Karnataka Soaps and Detergents v. CCE, Mysore - 2005 (192) E.L.T. 892 (T) = 2005 (70) RLT 42 will be applicable and Cenvat credit on the basis of supplementary invoice can be taken as in the case of transfer ....
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....n 11A(1) of the Central Excise Act. 1944 thereinafter referred to as CEA. 1944) is rightly invokable in this case to recover the CE duty so short paid for the extended period beyond 1 year and to adjust the amount already paid by M/s. KBL against the CE duty sought to be recovered from them under the said proviso of Section 11A(1) of the CEA, 1944. 18. It also appears that M/s. KBL has mis-declared the assessable value he said goods cleared on stock transfer basis in their invoices and in the monthly returns filed with the jurisdictional C. Ex. Range Office by not including the expenses under the various heads as detailed above in the cost of production of the said goods. It further appears that as soon as the above discrepancy was brought to the notice of M/s. KBL, they paid Rs. 20,00,000.00 immediately. Further M/s. KBL tried to get refund of Rs. 12,10,402.28 by working the differential C. Ex. Duty to Rs. 7,89,597.72. While working the differential duty of Rs. 7,89,597.72 M/s. KBL did not take into account the expenses under the head Royalty. Further they considered the rate of overhead of previous year i.e. for the year 2001-02 instead of taking it of the relevant year i.e....
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....ay, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect as if for the words "one year" the words "five years" were substituted".                        [Emphasis added] 12. It is clear that Section 11A contemplates payment of additional duty in cases of short payment etc., and notice was issued invoking the proviso which covers cases of non/short payment etc. on account of fraud, collusion etc. 13.&e....