2017 (2) TMI 314

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....ry invoice NO. 442 dated 3-8-2004 issued by M/s. Lotus Chocolate Company Ltd, Narsapur. The said invoice was issued after case was registered by P&I Wing of Hyderabad against M/s. Lotus chocolate Co. The adjudicating authority disallowed the Cenvat credit on supplementary invoice on the ground that the supplementary invoice was issued by M/s. Lotus Chocolate Co. in respect of duty short paid by suppression of facts. The duty demand against M/s. Lotus Chocolate Co. was confirmed invoking extended period under proviso to Section 11A(1) which is for non payment of duty by reason of suppression of fact, fraud, collusion etc. The supplementary invoice cannot be admissible for availing Cenvat credit by the recipient of the goods. Being aggrieved ....

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....AC are pari materia. In the instant case penalty imposed under Section 11AC by the adjudicating authority has been dropped by the Commissioner (Appeals), which has been accepted by the department as no appeal was filed against the said order. This also shows that there is no suppression of facts on the part of M/s. Lotus therefore in the present case the denial of credit on the supplementary invoices issued by M/s. Lotus is not covered under sub Rule 7(1)(b) of Cenvat Credit Rules, 2004. He submits that as per the fact of the case since M/s. Lotus has carried out the manufacturing on job work basis supplying the goods to the appellant on behalf of the Cadbury, it cannot be said that supplementary invoice issued in respect of duty paid is un....

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.... basis for denial of Cenvat credit is short payment of duty by the M/s. Lotus chocolate Co by the reason of suppression facts, therefore on the supplementary invoice issued, the appellant is not entitle for the Cenvat credit as the recipient of the goods. I find that in the proceedings of the M/s. Lotus the adjudicating authority dropped the penalty of Section 11AC on the ground that the assessee had paid duty alongwith interest before issuance of show cause notice. In the identical fact in case of Century Rayon(supra) it was held that when there was no reason found for invoking provision of Section 11AC, there is no reason to apply provision of Rule 7(b) therefore following decision of this Tribunal in case of Century Rayon(supra) appellan....