2012 (2) TMI 421

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....ection 11AC of the Central Excise Act, 1944. 3. Briefly stated the facts of the case are that the Appellant availed and utilized the CENVAT Credit amounting to Rs. 4,20,15,654,00 in the month of July, 2006 on the strength of supplementary invoices dated 30-6-2006 issued by M/s. Chennai Petroleum Corporation Ltd., Manali, Chennai (hereinafter referred to as M/s. CPCL) for payment of differential duty on account of supply of Lube Oil Base Stock (LOBS) to the Appellant during the period from October, 2004 to May, 2006. The Department initiated proceedings against M/s. CPCL on the ground that they had suppressed the material facts with intent to evade payment of duty. M/s. CPCL approached the Settlement Commission, which passed an Order....

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....T Credit on the strength of the supplementary invoices raised by M/s. CPCL. The contention is that the embargo put by Rule 9(1)(b) of the CENVAT Credit Rules 2004, is not applicable to their case, as the allegation of suppression, mis-statement etc. had not been established against M/s. CPCL. The allegations remained the allegations only and were not established at any stage, therefore, the embargo is not applicable. In support of their contention, they have placed reliance on a decision of the Co-ordinate Bench of the Tribunal at Mumbai, in their own case reported in 2011 (274) E.L.T. 561 (Tri.-Mum.), wherein it was held that mere allegation does not prove the charge, unless and until it is proved. They have also placed reliance on a decis....

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....bargo under Rule 9(1)(b) applies to the situation where duty has been paid under exceptional clause of Rule 9(1)(b). For better appreciation, Rule 9(1)(b) of Cenvat credit Rules, 2004 reproduced hereunder : "Rule 9. Documents and accounts. - (1) The CENVAT credit shall be taken by the manufacturer or the provider of output serviced or input service distributor, as the case may be, on the basis of any of the following documents namely :- (a)     .............................. (b)   a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises of the consignment agent of....