2018 (9) TMI 906 – CESTAT NEW DELHI – TMI – CENVAT credit – duty paying invoices issued by the Coal Companies – supplementary invoices – Rule 9 (1) (b) of Cenvat Credit Rules – suppression of facts or not? – Held that:- It has been specifically noted that the connected matters of South Eastern Coal Field Ltd. are pending adjudication before the Hon’ble Apex Court – Issue being already sub-judiced the element of confusion cannot be ruled out. ‘Suppression’ being altogether contradictory to ‘Confusion’, the same cannot be made applicable in the given circumstances, unless and until there is some apparent positive act of the appellant on the record amounting suppression of fact.
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It is apparent on record that the show cause notice to M/s. SECL is prior event than the appellant availing the credit on supplementary invoices issued by the said M/s. SECL but the simultaneous fact remains is that the demand against M/s. SECL vide said show cause notice is still under challenge and is pen
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nts in terms of Rule 9 (1) (b) of Cenvat Credit Rules. Accordingly, a show cause notice dated 17.6.2015 was issued to the appellant for the recovery thereof. The said recovery was initially confirmed by Order of Original Adjudicating Authority dated 30.3.2017 and the findings have been confirmed vide the impugned order of learned Commissioner (Appeals) bearing No. BHO-EXCUS-001-APP-495 17-18 dated 29.11.2017. Being aggrieved is the present appeal. 2. We have heard Shri Rahul Tangri, learned Advocate for the appellant and Ms. Tamana Alam, learned D.R. for the Department. 3. It is submitted on behalf of the appellant that the main issue of valuation is sub-judiced before Hon ble Apex Court. The appellant herein has availed the Cenvat Credit on the supplementary invoice issued by the main manufacturer i.e. South Eastern Coal Fields. It is brought to the notice that the similar identical matters have already been decided in favour of the appellants. The case of appellant is impressed upon
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not be made available to them in view of Rule 9 (1) (b) of Cenvat Credit Rules. Impressing upon the present appeal to stand on different footings than rest of the appeals, the appeal in hand is prayed to be rejected. 5. After hearing both the parties and perusing the decisions as impressed upon, we observe that the moot issue is about the entitlement of the appellants to avail cenvat credit on the basis of supplementary invoices issued by the Coal Companies. It has been specifically noted that the connected matters of South Eastern Coal Field Ltd. are pending adjudication before the Hon ble Apex Court. Issue being already sub-judiced the element of confusion cannot be ruled out. Suppression being altogether contradictory to Confusion , the same cannot be made applicable in the given circumstances, unless and until there is some apparent positive act of the appellant on the record amounting suppression of fact. Mere failure of ascertaining about the exclusion part of Rule 9 (1) (b) cann
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isposed 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. 7. No doubt, it is apparent on record that the show cause notice to M/s. SECL is prior event than the appellant availing the credit on supplementary invoices issued by the said M/s. SECL but the simultaneous fact remains is that the demand against M/s. SECL vide said show cause notice is still under challenge and is pending adjudication before the Hon ble Apex Court. It is clear to hold that the issue of wrong availment on part of M/s SECL is still
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