Custom, Excise & Service Tax Tribunal
Cce Pune I vs Tetra Pak (India) Pvt. Ltd on 15 April, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/1199/07 Mum
(Arising out of Order-in-Appeal No. PI/01/07 dated 05.01.2007 passed by the Commissioner of Central Excise (Appeals), Pune I)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
CCE Pune I
:
Appellant
Versus
Tetra Pak (India) Pvt. Ltd.
Respondent
Appearance Shri V.C. Khole, Jt. Commissioner (A.R.) For appellants Ms Aparna Rao, Advocate For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 15.04.2014 Date of Decision : 15.04.2014 ORDER NO.
Per Ashok Jindal Revenue is in appeal against the impugned order wherein the learned Commissioner (Appeals) allowed the CENVAT Credit availed by the respondent.
2. Brief facts of the case are that the respondents are engaged in the manufacture of Asceptic Packings and availed CENVAT Credit on the inputs. During the course of examination it was found that the respondents have imported certain goods duty-free but they failed to fulfill the export obligation. It was also found that they have imported excess inputs as permitted in their licence. Therefore, proceedings were initiated against the respondent. The respondents approached the Settlement Commission and settled the case over there. The matter was settled as the duty was payable by the respondent but they got immunity from fine and penalty. In these circumstances, a show-cause notice was issued to deny the CENVAT Credit of the amount of duty paid by the respondent after settlement of the case as per Rule 9(1)(b) of the Cenvat Credit Rules, 2004 they are not entitled to take credit of the duty by way of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty. The learned Commissioner (Appeals) allowed the credit relying on the decision in the case of Silver Oak Laboratories Pvt. Ltd. v. CCE Noida 2006-TIOL-765-CESTAT-Del). Aggrieved by the said order, the Revenue is in appeal.
3. Heard both sides.
4. The learned A.R. submits that in this case it is an admitted fact that the respondent has failed to fulfill the export obligation as well as imported excess quantity of input duty-free as per the revenue. If the investigation was not conducted, this fact would not have been revealed that means there is a suppression of facts by the respondents. In these circumstances, the charge of suppression of facts has been proved. Therefore, they are not entitled to take CENVAT Credit of duty paid.
5. On the other hand, the respondents submits that as the matter has been settled before the Settlement Commission and thereafter no adjudication took place to confirm the charge of suppression of facts. In the circumstance, as the charge of suppression of facts is inconclusive, therefore, they are entitled for CENVAT Credit of duty paid. To support this contention the learned Advocate relies on the decision in the case Indian Oil Corpn Ltd. 2011 (274) ELT 561 (Tri. Mum).
6. Considered the submissions and perused the records.
7. In this case, the fact is that the matter has been settled by the Settlement Commission which was not in dispute. Thereafter, no adjudication took place to prove the charge of suppression. This case is squarely covered by the decision of Indian Oil Corporation (supra) wherein this Tribunal has held that as adjudication did not take place therefore, the allegation of suppression of facts inconclusive. In these circumstances, the assessee is entitled to take CENVAT Credit of duty paid. The facts of the case in hand are similar to the facts of the case of Indian Oil Corporation Ltd. (supra). Therefore, I hold that the respondents are entitled to take the CENVAT Credit of the duty paid.
8. In these circumstances, I do not find any infirmity with the impugned order and the same is upheld. The appeal filed by the Revenue is dismissed.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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