Custom, Excise & Service Tax Tribunal
Australian Foods India Pvt.Ltd vs Commissioner Of Central Excise, ... on 11 November, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.E/361/2008
[Arising out of Order-in-Appeal No.35/2008 (M-II) dated 30.4.2008 passed by the Commissioner of Central Excise (Appeals), Chennai]
For approval and signature:
Honble Ms.JYOTI BALASUNDARAM, Vice-President
1. Whether Press Reporters may be allowed to see 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 the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Australian Foods India Pvt.Ltd.
Appellants
Versus
Commissioner of Central Excise, Chennai
Respondent
Appearance:
Shri P.C.Anand, Consultant Ms.Indira Sisupal, JDR For the Appellants For the Respondent CORAM:
Honble Ms.Jyoti Balasundaram, Vice-President Date of hearing : 11.11.2009 Date of decision : 11.11.2009 Final Order No.____________ I have heard both sides on the appeal against the order of the Commissioner (Appeals) upholding the confirmation of demand and interest and for reducing penalty to Rs.10,000/-. The demand arises as a result of holding that the assessees are not entitled to take CENVAT credit paid under supplementary invoice issued by a manufacturer of inputs for the reason that the additional amount became recoverable by reason of suppression of facts with intention to evade payment of duty. I find that assessees had accepted before the Settlement Commission that removal of dough for the purpose of manufacture of cookies by one unit to another without payment of duty was due to the suppression. This fact stands recorded in the adjudication order. The Settlement Commission has also held that it is not convinced about the contention of the assessee of non-intention to evade payment of duty. Under these circumstances, Rule 9(b) of the CENVAT Credit Rules, 2004 is clearly attracted and, therefore, they are not eligible to take CENVAT credit.
2. The contention of ld. consultant that notification under Section 11C dt. 18.8.09 has been issued covering dough for preparation of bakery wares and covering the period in dispute and, therefore, the assessee cannot be held to be guilty of clandestine clearance of dough cannot be accepted as it is not relevant for the purpose of deciding whether the assessees removed dough clandestinely from one unit of theirs to another, which fact has been admitted by them before the Settlement Commission.
3. In view of the above, I uphold the impugned order and reject the appeal.
(Dictated and pronounced in open court) (JYOTI BALASUNDARAM) VICE-PRESIDENT gs 3