TaxTMI 
TaxTMI 
2018 (7) TMI 1526
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....e seized. Later, on 18.02.2003, the assessee secured registration under the Central Excise Act and deposited Rs. 50 lakhs towards advance duty. The show cause notice was issued on 08.04.2005 with respect to the seizure of goods. Later, the statement of its proprietor Mr. Amit Madan had been recorded on a number of dates of hearings. Given all these circumstances, the appellant had approached the Customs and Excise Settlement Commission which rejected its request for resolution of the case observing that its manufacturing units have not been registered and were not filing returns. The appellant unsuccessfully approached this Court aggrieved by the order of the Settlement Commission. On 17.10.2012, adjudicating authority (Commissioner) passed the final order. In that order, inter alia, the Commissioner rejected the assessee's submissions with respect to the admissibility of Cenvat credit upon the input i.e. amount of countervailing duty paid by the importer M/s Marvellous Impex (another proprietorship concern of Mr. Amit Madan). The findings of the Commissioner on this aspect are as follows: "66. Now what differentiates the cases relied upon by the noticee from t....
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.... denial of any Cenvat Credit due to non registration of the assessee. 8. Here we are dealing with the case of transaction without any document relating to duty paid receipt of PVC resin as raw material. If that being the case, the question of duty paid nature of such raw material cannot be ascertained. M/s. Marvellous Impex discharged CV Duty on the import does not automatically entitle the appellant for the credit of such duty. To repeat, Cenvat Credit can be availed. only on documented receipt of duty paid inputs where the receipt for such duty payment on such raw material form evidence in terms of Rule 9 of Cenvat Credit Rules 2004. In the illicit transaction involving the raw material PVC resin the question of having any "documented receipt of such raw material and more importantly, duty payment of such input cannot be established. In the present case, no such attempt is being made by the appellant for obvious reasons. The main plea of the appellant is that since illicit receipt of unaccounted raw material has been confirmed in the adjudication, the credit available on such raw materials should be allowed. We find no legal or factual support in such assertion. Duty paid....
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....erving as follows: "2. The High Court, however, took note of the fact that no contention had been raised before the Tribunal that the appellants should be permitted to meet the requirements of Rule 56-A of the Central Excise Rules and, therefore, they cannot be permitted to avail of that benefit in a writ petition brought under Article 226 of the Constitution. That indeed was a technical view to take because if the appellants were entitled to the benefit of the Notification No. 71/71-CE dated 29-5-1971, to deny that benefit on the technical ground of non-compliance with Rule 56-A would be tantamount to permitting recovery of double duty on the intermediary product. The circumstances in which the appellants did not pay the duty on the intermediary product before putting the same to captive consumption for producing that stage, the appellants contested the correctness of the classification and had, therefore, not paid the duty on the intermediary product. When it was found that they were liable to pay duty on the intermediary product and had not paid the same, but had paid the duty on the end product, they could not ordinarily have complied with the requirements of Rule 56-A. Once ....
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.... may refer to the judgment of the Supreme Court referred to above, wherein the Hon'ble Supreme Court held as follows:- ........................................" Likewise, the Allahabad High Court in Atrenta India Pvt. Ltd. (supra) and Karnataka High Court in mPORTAL India Wireless Solutions P. Ltd. (supra) followed the reasoning in Formica. In the last mentioned decision mPORTAL India Wireless Solutions P. Ltd. (supra), the only issue was entitlement of the assessee to Cenvat credit for a period of time when it was not registered. The Court held as follows : "7. The assessee is a 100 per cent export oriented unit. The export of software at the relevant point of time was not a taxable service. However, the assessee had paid input tax on various services. According to the assessee a sum of Rs. 4,36,985 is accumulated Cenvat credit. The Tribunal has categorically held that even though the export of software is not a taxable service but still the assessee cannot be denied the Cenvat credit. The assessee is entitled to the refund of the Cenvat credit. Similarly insofar as refund of Cenvat credit is concerned, the limitation under section 11B does not apply for&nbs....
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....rtment in order to evade Central Excise duty; iii) M/s. Icon Industries at both of its units was engaged in the clandestine manufacture & clearance of excisable goods i.e. PVC battery separators; iv) the party manufactured and cleared the battery separators or. kacha private records without accountal, without issuance of proper invoice, without payment of Central Excise duty and without following the Central Excise procedure; v) the party had generated a fictitious firm working in the name and style of M/s. Oasis Enterprises, 435, Panja Sarif, Kashmeeri Gate, Delhi, 110006 and was transporting the goods manufactured in their factories at Unit-I&II to the outstation parties under the invoices issued from M/s Oasis Enterprises to suppress their production and clearance so as to evade Central Excise duty and to avoid detection of manufacturing unit by the govt. authorities during transportation of the goods; vi) M/s. Marvellous Impex, also a proprietorship concern of Sh. Amit Madan, proprietor of M/s. Icon Industries which was engaged in importing and trading of a special type of PVC Resin used in the manufacturing of Battery Separators created a fictitious firm in the name an....