TaxTMI 
TaxTMI 
2021 (2) TMI 365
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....e being returned, the credit/ duty liability was required to be confirmed. However, since the said transaction was recorded in private records, a token penalty was imposed on them. At the same time it was held that if there was proof of receipt and use of such goods by recipient group entities the credit of such duty so paid will be allowed to recipient in accordance with law. The appellant had availed such cenvat credit which was paid by M/s Nirayu Pvt Ltd. The department however denied such credit, on the ground that since such credit was to be allowed in accordance with law, however, there was intention to evade duty the credit is not eligible to the appellant under Rule 9(1) (b) of CENVAT Credit Rules, 2004. 2. Shri. Saurabh Dixit, L....
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....t of duty at all. Hence interest under Section 11AB for the period up to 11.05.2001 was not imposable. He submitted that this is sufficient to show that there was no intent to evade duty on the part of M/s Nirayu Pvt Ltd and hence Rule 9(1) (b) of Cenvat Credit Rules, 2004 cannot be invoked against the appellant. He further submits that even if intent to evade duty is assumed on the part of M/s Nirayu Pvt Ltd there was no sale made by them to the appellant and is such circumstances embargo of Rule 9 (1) (b) of the said Rules does not gets attracted. He relied upon the following case laws in support of this contention:- • Karnataka Soaps & Detergents Ltd-2005 (192) ELT 862 (Tri. Bang.) • Karnataka Soaps & Detergents....
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....gets attracted. He placed reliance on the following judgments:- • HAWKINS COOKERS LTD. Vs. CC & C.EX/ MUMBAI-II-2007 (220)E.L.T. 455 (Tri. -Mumbai) • TOSHI AUTO INDIA LTD. Vs. CC. Ex., DELHI-IV-2009 (247) E.L.T. 337 (Tri. -Del) • CC.EX.,MUMBAI-III Vs. VIDYUT METALLICS P. LTD.-2014 (311) E.L.T. 748 (Tri. -Mumbai) 4. I have heard both the sides and perused the record. There is no doubt that M/s Nirayu Pvt Ltd. had cleared goods to the appellant and on which appropriate duty stands paid later on. Both the lower authorities are not disputed and receipts and uses of such goods within the factory premises of the appellant and as per the contents of the show cause notice itself. The appellant also produced....
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....). I have observed that in case where the supplementary invoice is issued by the manufacturer in respect of the additional amount of Excise Duty which has been paid which became recoverable on account of any non-levy or short levy by reason of fraud, collusion or any wilful misstatement or suppression of fact or contravention of any provision of the Excise Act or rule made there under with intent to evade payment of duty, the Cenvat Credit is not allowed of such supplementary invoice. However, I find that there is merit in the submission made by the appellant that in case where goods are not sold and supplementary invoice is raised above Rule 9 (1) (b) of Cenvat Credit Rules, 2004 cannot be invoked in such circumstances. I also find that th....