TMI Blog2021 (2) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be allowed in accordance with law, however, there was intention to evade duty the credit is not eligible to the appellant under Rule 9(1) (b) of CENVAT Credit Rules, 2004. 2. Shri. Saurabh Dixit, Learned Counsel appearing on behalf of the appellant submits that the CESTAT Order No. A-594-600/WZB/05/C-II dated 12.07.2005 in the case of M/s Nirayu Pvt Ltd. was appealed against by the revenue before the Hon ble Gujarat High Court vide Tax Appeal No. 89/2006 challenging allowing of credit to recipient as per Rule 9 (1) (b) of Cenvat Credit Rules, 2004 as well as reduction of mandatory penalty under Section 11 AC of Central Excise Act, 1944. The Hon ble High Court admitted the tax appeal only on the issue of reduction of penalty and did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attracted. He relied upon the following case laws in support of this contention:- Karnataka Soaps Detergents Ltd-2005 (192) ELT 862 (Tri. Bang.) Karnataka Soaps Detergents Ltd-2010 (258)ELT 62 (Kar) Godrej Industries Ltd-2008 (232) ELT 108 (Tribunal-Mum) Jai Raj Ispat Ltd-2007 (2017)ELT 272 (Tribunal-Bang.) Jai Raj Ispat Ltd-2009 (245)( ELT 118 (A.P.) United Phosphorous Ltd.-2014 (313) ELT 418 (Ti.-Ahmd.) Jindal Steel Power Ltd-2017 (355) ELT 568 (Ti. Del) Creative Products P. Ltd-2018 (12) TMI 1782-CESTAT KOLKATA Jai Balaji Industries Ltd-2018 (11) TMI 1198-CESTAT KOLKATA M/s Nirayu Pvt. Ltd-2017 (7) GSTL 14 (Guj.) Jet Airways (I) Ltd-2016 (44) STR 465 (Tri) Jet Airways (India) Ltd.-2017 (7) GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so produced C.A certificate in support of this fact. While the issue may have been revenue neutral, it is fact that the penalty under section 11AC stands imposed on M/s Nirayu Pvt Ltd. by the Hon ble Gujarat High Court. The departments sought to deny the Cenvat Credit on the ground that there is a suppression of fact on the part of M/s Nirayu Pvt Ltd. in payment of duty, therefore, for availing Cenvat Credit by the appellant Rule 9 (1) (b) of Cenvat Credit Rules, 2004 gets attracted. The said Rule is reproduced below. Rule 9(1)(b) -a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises of the consig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the issue is squarely covered by case law as relied upon by the appellant on this ground and as referred (supra). In fact, in the decision in the case of Karnataka Soaps Detergents Ltd (Supra) as well as Jai Raj Ispat Ltd (Supra) 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. I also noted that such view is also approved by Hon ble High Court in above referred cases. 5. As per my above discussion and finding, since the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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