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2023 (12) TMI 5 - AT - Central ExciseCENVAT Credit availed in respect of CVD and SAD - duty paying documents - non-eligible in terms of provisions of Rule 9(1)(b) of the CENVAT Credit Rules, 2004 - misclassification of goods imported by the appellant with an intention to evade payment of duty - HELD THAT:- On perusal of the Show Cause Notice issued by DRI, it is seen that the main allegation is that of classification of the imported 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. The appellant has paid the duty on the inputs under protest. It is brought out from the facts that the appellant has captively consumed the imported goods. The situation of issuing a supplementary invoice would arise only if the manufacturer sells the goods from his factory. In the present case, the appellant has captively consumed the goods. The credit has been availed of the duty paid on the TR-6 Challans - there is no reason to apply Rule 9(1)(b) of the CENVAT Credit Rules, 2004. 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. Thus, the demand cannot sustain. The impugned order is set aside - appeal allowed.
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