Australian Foods India Pvt.Ltd. Vs. Commissioner of Central Excise, Chennai - Court Judgment

SooperKanoon Citationsooperkanoon.com/942968
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Chennai
Decided OnNov-11-2009
Case NumberAppeal No.E/361 of 2008
Judge THE HONOURABLE MS. JYOTI BALASUNDARAM, VICE PRESIDENT
AppellantAustralian Foods India Pvt.Ltd.
RespondentCommissioner of Central Excise, Chennai
Advocates:Shri P.C.Anand, Consultant. Ms.Indira Sisupal, JDR
Excerpt:
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.
Judgment:

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.