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TMI Blog2017 (12) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on pointed out, the sister unit paid the service and on supplementary invoices issued by the sister unit in 2012, the appellant availed Cenvat credit. Later on, in 2015, another audit took place in the factory of the appellant and it was found that as the sister unit has paid service tax along with penalty, in terms Section 73(4A) of Finance Act, 1994. Therefore, they are not entitled to avail Cenvat credit on the strength of supplementary invoices in terms of Rule 9(1) BB of the Cenvat Credit Rules, 2004. The matter was adjudicated and Cenvat credit was denied. Against which the appellant is before me. 3. The ld. Counsel for the appellant submits that as the sister unit has paid service tax and issued supplementary invoices to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of default has been paid, in that circumstance proceedings are to come to an end. In that circumstance, the allegation of fraud, collusion, wilful suppression of facts or non payment of service tax with intent to evade payment of service tax under the Act or Rule, cannot be held that these ingredients are there. In the absence of these ingredients, in terms of Rule 9 (1) BB of Cenvat Credit Rules, Cenvat credit cannot be denied to the appellant in the light of decision in the case of Indian Oil Corporation Limited (Supra), wherein the facts of the case are as under:- "2. Brief facts of the case are that the appellant has taken CENVAT credit on the strength of a supplementary invoice issued by M/s. Chennai Petroleum Corporation Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demands were confirmed along with interest and penalty. Against the said order the appellant is before us." Wherein this Tribunal has observed as under : "7. After considering the several submissions made by both the sides, we find that in the case of M/s. CPCL there were allegation of suppression/undervaluation in the show-cause notice which had not been adjudicated at any stage. In fact, before the adjudication, M/s. CPCL has approached to the Settlement Commission and without accepting the allegation in the show-cause notice, opted to settle the matter by paying duty and the interest which has been considered by the Settlement Commission while settling the issue wherein M/s. CPCL has been given immunity from penalty and prosecution. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is proved. By approaching to the Settlement Commission, the allegation has not been proved against M/s. CPCL, as the allegation of the show-cause notice remained unproved. As the allegation against M/s CPCL has not been proved, the denial of CENVAT credit under Rule 9(1)(b) to the appellant is not sustainable. Therefore, we set aside the impugned order and allowed the appeal with consequential relief, if any." As the issue is squarely covered by the decision of Indian Oil Corporation Limited (Supra), wherein this Tribunal held that when in settlement proceedings, the proceedings have settled, in that circumstances, on the basis of supplementary invoices Cenvat credit cannot be denied on the ground of fraud, collusion, wilful misstatement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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