2016 (10) TMI 760

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....nder-valuation of imported goods. Thus, according to the Department, since the amount was paid by reason of fraud, collusion, suppression of facts with the intention to evade payment of duty, CENVAT credit on the basis of challan is not admissible, in terms of Rule 9(10(b) of the CENVAT Credit Rules, 2004. Show Cause Notice issued in this regard was adjudicated vide Order-in-Original dated 07.10.2012, wherein CENVAT credit of Rs. 40,24,224/- was disallowed and equal amount of penalty was imposed by the adjudicating authority. In appeal, the Commissioner (Appeals) vide the impugned order dated 09.10.2013 upheld the adjudication order. Hence, the present appeal is before this Tribunal. 2. Ld. counsel for the appellant submits that the issu....

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....ords. 5. In the present case, the appellant had availed CENVAT credit on the basis of the challans dated 19.10.2009 and 22.10.2009, certified by the DRI officials. The CENVAT credit so availed has been denied by the authorities below on the ground that the non-levy or short levy of duty was occasioned by fraud, collision, wilful mis-statement, which falls under the restricted provisions of Rule 9(1)(b) of CENVAT Credit Rules, 2004. Thus, according to the lower authorities, the embargo created in Rule 9(1)(b) of the Rules is applicable, which restricts availment of CENVAT credit, on the strength of the supplementary invoices. 6. I find that the issue involved in the present case has already been resolved by the Settlement Commission vi....

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....wilful mis-statement, fraud, etc. cannot be levelled against the appellant. Since the Show Cause Notice dated 19.09.2011 was challenged by the appellant before the settlement Commission, the said Notice cannot be adjudicated by the officers below, and as there is no adjudication order for the said notice, the question of framing charges of fraud, suppression of facts, etc. does not arise. Thus, in my view, the embargo created in Rule 9(1)(b) of the Rules does not apply to the facts of the case, disentitling the appellant to avail CENVAT credit. 8. The case of the appellant is squarely covered by the decision of the Larger Bench of the Tribunal in the case of Bosch Chassis Systems India Ltd. Vs. CCE (supra), the relevant para in the said ....

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....concealment. From agreeing to additions, it does not follow that the amount agreed to be added was concealed. There may be hundred and one reasons for such admissions, i.e. when the assessee realizes the true position it does not dispute certain disallowances but that does not absolve the revenue to prove the means rea of quasi criminal offence........." If the plea of the Revenue is accepted, it will render the entire exercise before the Settlement Commission nugatory and the provisions of Section 32E (1) ["manner in which such liability has been derived"] redundant." 9. On perusal of Rule 9(1)(b) of the Rules, it is revealed that the bar/restriction provided therein operates only when the goods sold by the manufacturer or the ....