2018 (7) TMI 1279 – CESTAT NEW DELHI – TMI – CENVAT Credit – duty paying documents – Supplementary Invoices – Rule 9 (1) (b) of the Cenvat Credit Rules 2004 – Held that:- In an identical set of facts in the case of Birla Corporation Ltd. V/s Commissioner [2018 (7) TMI 1264 – CESTAT NEW DELHI], Tribunal allowed the Cenvat Credit holding that there cannot be suppression of fact when the issue of liability of payment of Excise duty at the end of the coal companies was a debatable issue which is pending adjudication in the Apex Court – appeal allowed. – Appeal No. E/50633/2018-SMC, Appeal No. E/51064/2018-SMC – Final Order No. 52540-52541/2018 – Dated:- 18-7-2018 – 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
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1) (b) of the Cenvat Credit Rules 2004 which provides that the supplementary invoice is not a valid duty paying document where the additional amount of duty became recoverable from the manufacturer on account of willful misstatement, suppression of facts etc. Accordingly, the lower Authorities passed orders against the appellants denying 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 th
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nt appeals may also be allowed. 5. The Ld. DR justified the impugned order. It is submitted on behalf of the Revenue that the provisions of Rule 9(1) (b) specifically provide that supplementary invoices are not allowed duty paying documents for availing credit wherever the additional amounts of duty became recoverable from the manufacturer 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
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rival contentions of both the sides, we take notice that this Tribunal in connected matter of South Eastern Coalfields Ltd. in Appeal No.52023-52026/2014-DB dated 3.4.2017 vide Final Order No.52723-52726/2017 dated 3.4.2017, taking notice of pendency of similar matter before the Hon ble Supreme Court in the case of South Eastern Coal Fields Ltd. and ors. and also other cases, referred to in the above case, disposed of the appeal of the South Eastern Coal Fields Ltd., granting liberty to them to come again after having final verdict from the Hon ble Supreme Court. Moreover, we are satisfied that there is 4 Excise Appeal No.50308/2018 no element of fraud and suppression on the part of the appellant. The issue herein is recurring in nature. Accordingly, we allow this appeal and hold that the appellant is entitled to take cenvat credit on the supplementary invoices in question. Thus, the appeal is allowed with consequential relief to the appellant. 10. By following the decision (Supra), I
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