TaxTMI 
TaxTMI 
2023 (12) TMI 5
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....hat the said product should be classifiable under CTH No. 28259090 which attracted BCD @ 7.5%, CVD @ 12.5% and SAD @ 4% and therefore an offence case was booked by the DRI in F.No. 10/2016 dated 23.01.2017 for misclassification of Burnt Lime Lumbs imported by the appellant. Subsequently, a Show Cause Notice dated 23.01.2017 proposing to demand the differential duty of Customs from the appellant was also issued. After the receipt of the said Show Cause Notice, the appellant voluntarily paid the duty 'under protest' and also availed the CVD & SAD paid by them as input credit on the basis of TR 6 Challans on 30.06.2017. According to the Department, as per Rule 9(1)(b) of the CENVAT Credit Rules, 2004, supplementary invoice, shall include challan or any other similar document evidencing payment of additional amount of duty leviable under Section 3 of the Customs Tariff Act which is a prescribed document to avail CENVAT Credit except, where the additional amount of duty became recoverable from the manufacturer or importer of inputs or capital goods on account of any non-levy or short levy by reason of fraud, collusion or any wilful mis-statement or suppression of facts or contravention ....
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....d by a manufacturer or importer of inputs or capital goods in terms of the Central Excise Rules, 2002 from his factory or Deport or from the premises of the consignment agent of the said manufacturer or importer or from any other premises from where the goods are sold by or on behalf of the said manufacturer or importer. Whereas, Rule 9(1)(b) of the CENVAT Credit Rules, 2004 refers to a 'supplementary invoice' issued by a manufacturer or importer for sale of inputs or capital goods, in terms of the provisions of the Central Excise Rules, 2002. 2.3 It is submitted that the plain language of Rule 9(1)(b) clearly refers to supplementary invoice issued by an importer of goods in terms of the Central Excise Rules, 2002 from his factory or depot or any other premises from where the goods are sold. In the present case, the appellant has not sold the goods and has captively consumed the imported goods for his own manufacture. The appellant have not issued any invoice or supplementary invoice from the factory or depot for sale of imported Quick Lime and has not passed on the Credit of the additional amount of Customs Duties paid under Challans to any buyer of the goods. Therefore, the rest....
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....goods. The Show Cause Notice is issued under Section 28(1) and not under 28(4). There is no allegation of fraud, collusion, wilful mis-statement or suppression of facts for the Show Cause Notice issued by DRI. The Ld. counsel for the appellant has also submitted that the said Show Cause Notice has culminated in passing of the adjudication order. The said order dated 22.07.2019 shows that there is no finding with regard to fraud, collusion, wilful mis-statement or suppression of facts. The issue in the DRI Show Cause Notice is purely that of classification of the imported inputs. Needless to say that the classification of a product is interpretational in nature and when there is no allegation raised in the Show Cause Notice as to fraud, collusion, wilful mis-statement or suppression of facts, it cannot be a ground for invoking Rule 9(1)(b) of the CENVAT Credit Rules, 2004. 5.2 For better appreciation Rule 9(1)(b) is reproduced as under:- "RULE 9. Documents and accounts. - (1) The CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following documents, namely :- (a) an inv....
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....n to apply Rule 9(1)(b) of the CENVAT Credit Rules, 2004. 5.4 The Tribunal Bangalore while analysing the similar issue in respect of the erstwhile Rule 7(1)(b) of the CENVAT Credit Rules, 2004 which is pari materia has held that the bar for availment of credit on supplementary invoices would operate only when the additional amount of duty becomes recoverable from the manufacturer on account of non-levy or short levy by reason of fraud, collusion or wilful mis-statement or suppression of facts, etc. The relevant paragraph reads as under:- "11. The relevant portion of Rule 7(1)(b) is reproduced below : "Rule 7. Documents and accounts. - (1) The Cenvat credit shall be taken by the manufacturer 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 from his depot or from the premises of the consignment agent of the said manufacturer or importer or from any other premises from where the goods are sold by, or on behalf of the said manufacturer or importer, in case additional amount of excise duties ....