TMI Blog2017 (12) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Reliance placed in the case of Indian Oil Corporation Ltd. Versus CCE Mumbai II [2011 (6) TMI 520 - CESTAT, MUMBAI]. On the basis of supplementary invoices Cenvat credit cannot be denied on the ground of fraud, collusion, wilful misstatement or suppression of facts - appeal allowed - decided in favor of appellant. - ST/10107/2017-SM - A/13573/2017 - Dated:- 20-11-2017 - Mr. Ashok Jindal, Member ( Judicial ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of default, that does not mean that charge of mensrea has been upheld against the sister unit, in the light of decision of this Tribunal in the case of Indian Oil Corporation Limited Vs. CCE, Mumbai - 2011 (274) ELT 561 (Tri. Mum.). Therefore, Cenvat credit cannot be denied. He also relied on the decision of this Tribunal in the case of Auto Window Vs. CCE, Mumbai - 2016 (41) STR 518 (Tri. Mum.) to say that as only on pointing out by the Revenue the service provider has paid the service tax and on the strength of payment of service tax service provider had issued supplementary invoices. In that circumstance, Cenvat credit cannot be denied to the appellant. 4. Ld. AR reiterated the findings of the impugned order. 5. Heard th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L) had suppressed material facts with intent to evade duty by invoking extended period of limitation and also proposed to impose penalty under Section 11AC of the Central Excise Act, 1944. While that notice was pending adjudication, M/s. CPCL approached to the Settlement Commission and the Settlement Commission passed an order dated 23-11-2007 accepting payment of additional duty to the extent of over ₹ 31.5 crores and settling the dispute between M/s. CPCL and the department. The Settlement Commission also granted immunity to the party from imposition of penalty and prosecution under the Central Excise Act, 1944. 3. Thereafter M/s. CPCL paid the differential/additional duty and issued supplementary invoice for the payment of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The question whether such additional amount of duty become recoverable from the manufacturer on account of short levy by reason of fraud etc. will not have relevance in view of the Settlement order issued by the Settlement Commission. In case, such credit was denied, it will be apparently against the very basis and spirit of settlement ordered by the Commission. In other words, a person against whom a show-cause notice was issued was granted immunity whereas the buyer of goods who availed credit is sought to be penalized. This, apparently, is untenable. 7.1 We have seen that in case of Bosch Chassis Systems India Ltd. (supra) which is relied on by both the sides, the Larger Bench of this Tribunal has categorically observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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