Jaypee Sidhi Cement Plant Versus CGST C.C & C. E-Jabalpur And Hindustan Zinc Ltd Versus CE & ST-Udaipur
Central Excise
2018 (7) TMI 1279 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 18-7-2018
Appeal No. E/50633/2018-SMC, Appeal No. E/51064/2018-SMC – Final Order No. 52540-52541/2018
Central Excise
Hon'ble Mr. V. Padmanabhan, Member (Technical)
Sh. Hemant Bajaj, Advocate for the appellant
Sh. P. Juneja, H.C. Saini & K. Poddar, DR for the respondent
ORDER
Per: V. Padmanabhan
1. The present appeals have been filed against the Order-in-Appeal No. 494/2017-18 dated 29/11/2017 (for appeal E/50633/2018) and Order-in-Appeal No. 323/2017 dated 07/02/2018 (Appeal No E/51064/2018). The issue involved in both the cases are identical and hence are being disposed through this common order.
2. The brief facts for purposes of the present appeals are that the appellants purchase coal from various subsidiary companies of M/s Coal India Ltd., like M/s South Eastern Co
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the Cenvat Credit availed on the basis of supplementary invoices issued by Coalfields. Aggrieved by the decisions the present two appeals have been field.
3. In the above background we heard Shri Hemant Bajaj, Ld. Counsel for the Appellants as well as Shri P. Juneja & Shri H.C. Saini, Ld. DRs for the Revenue.
4. The arguments advanced on behalf of the appellants by Ld. Advocate are summarized below:-
i. He contended that the case of the Department is that the differential duty paid by the Coal Companies was on account of fraud, suppression etc alleged against them and hence the prohibition contained in Rule 9(1)(b)) applies to the appellants. In this connection he submitted that proceedings against the coal companies have not attended finality and are subjudice before the Apex Court. The appeals filed by the coal companies before the Tribunal have been disposed off with a direction to approach the Tribunal again after the outcome of the decision of the Hon'ble Supreme Court in the
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turer on account of willful misstatement, suppression of facts etc. Proceedings against the coal companies have been initiated by the Revenue by alleging suppression and hence the supplementary invoices cannot be the basis for availing credit as has been held by the lower authorities. Hence it is prayed that the appeal may be dismissed.
6. Further he submitted that the case law in the case of Birla Corporation may not be applicable to the present case but the fact whether there is suppression on the part of the present appellant is required to be considered by Tribunal.
7. After hearing both sides and perusal of record I note that the issue involved in the present appeals is whether the appellants are entitled to Cenvat Credit on the basis of supplementary invoices issued by the coal companies. Such credit stands denied in terms of Rule 9 (1)(b) of the Cenvat Credit Rules which denies the credit if such supplementary invoices are issued for duties which became payable by the manufact
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