TMI Blog2008 (2) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal is directed against the order-in-appeal No.SRK/15/RGD/2007 dated 10/07/2007. 2. The relevant fact that arises for consideration are the appellant had availed cenvat credit under the provisions of Cenvat Credit Rules. The appellant had received inputs supplied by an 100% EOU, which showed payment of duty @ 16% ad-valorem + education cess of 2% and indicated that the said duty is paid as per Sl.No.3 of Notification No.23/03-CE dated 31/03/2003 as is applicable to the said 100% EOU. On subsequent investigation carried out against the supplier, it was found that the said supplier was not eligible for payment of duty as per Sl.No.3 of Notification No.23/03-CE but was required to pay duty as per Sl.No.2 of Notification No.23/03-CE. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Settlement Commissioner, and Settlement Commission having accepted their application were granted immunity from prosecution and imposition of penalty. It is his submission that penalty imposed on the current appellant as a co-noticee is also liable to be set aside. He relies upon the majority order of the Tribunal in the case of Nippon Bearing Pvt. Ltd., Vs. CC (Imports) Mumbai as reported at 2007-TIOL-1130-CESTAT-MUM. 5. Ld. SDR on the other hand would contend that the availment of ineligible Cenvat credit is accepted by the appellants and as such, provisions of Rule 13 would be directly applicable. It is his submission that the penalty imposed by the adjudicating authority. On the other hand, is on the lower side and there s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er I find strong force in the contentions of the Ld. Counsel that the supplier having settled the issue with the Settlement Commission, as regards the payment of differential duty, the appellant and the co-noticee cannot be visited with penalty. I find that the reliance placed by the Counsel in the case of Nippon Bearing Pvt Ltd., (supra) is correct I may read the ratio. "The appellants herein did not file any application before the Settlement Commission and they claimed that they were not even aware of an application having been filed by the importer before the Settlement Commission. To my mind, the consequence of final order of settlement passed by the Settlement Commission in the case of Amrit Laxmi is that the case, i.e. the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoked if the goods imported would become liable to confiscation under Sec.111. The show cause notice issued to the importer invoking the provisions of Sec.111 qua the goods imported by the importer and the case having been settled, penalty under Sec.112 which is dependent upon the goods being held to be liable to confiscation under Section 111, cannot be imposed, as the order of settlement does not contain any finding to the effect that the goods were liable to confiscation under Sec.111". The points of difference are therefore, are answered as under:- (a) While the provisions of KVS Scheme and those relating to settlement of cases under the Customs Act are not completely identical, the underlying objective in both the scheme is simil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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