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2021 (2) TMI 365 - AT - Central ExciseCENVAT Credit - supplementary invoice - Suppression of facts or not - Departments sought to deny the Cenvat Credit on the ground that there is a suppression of fact on the part ofSupply of goods in payment of duty, therefore, for availing Cenvat Credit by the appellant Rule 9 (1) (b) of Cenvat Credit Rules, 2004 gets attracted - HELD 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. 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 - Also the issue is squarely covered in the decision in the case of KARNATAKA SOAPS AND DETERGENTS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [2010 (2) TMI 524 - KARNATAKA HIGH COURT] as well as COMMISSIONER OF CUS. & C. EXCISE, HYDERABAD-IV VERSUS JAIRAJ ISPAT LIMITED [2008 (2) TMI 440 - ANDHRA PRADESH HIGH COURT] where it was held that even if differential duty was paid on account of intention to evade duty the credit cannot be denied to recipients when the goods were not sold to them but only stock transferred. There is no allegation or finding in the impugned order that such goods were sold to the appellant by M/s Nirayu Pvt Ltd on which the disputed credit was availed. Credit allowed - Appeal allowed - decided in favor of appellant.
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