2019 (1) TMI 171 – CESTAT NEW DELHI – TMI – CENVAT Credit – duty paying invoices – denial of credit availed on the basis of supplementary invoices issued by the manufacturer – Held that:- Suppression being altogether contradictory to confusion cannot be made applicable in the given circumstances, unless and until there is some apparent positive act of the appellant on the record. Mere failure of ascertaining about the exclusion part of Rule 9 (1) (b) cannot be held to be the act of suppression or collusion on part of the appellant.
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Above all, the supplementary invoices have been issued by the Coal Companies, which are the undertakings of the Government of India, there can be no presumption, unless rebutted, of any alleged suppression or collusion – credit allowed – appeal allowed – decided in favor of appellant. – Excise Appeal No. E/53443/2018-EX[SM] – Final ORDER NO. 50003/2019 – Dated:- 1-1-2019 – MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. S.C. Kamra
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Coalfields Ltd., Karba i.e. on account of differential excise duty paid by them, for Royalty Stowing Excise Duty, Niryat, Dev Tax & Env. Tax. The said credit is alleged to have been barred in view of Rules 3 and 9 (1) (b) of CCR 2004 with an intent to avail & utilize cenvat credit wrongly. The Original Adjudicating Authority vide order dated 30th September, 2016 has confirmed the demand as levied which has been upheld by the order under challenge herein. Hence the present appeal. 3. We have heard Shri S.C. Kamra, ld. Advocate for the appellant and Shri P. Juneja, ld. D.R. for the Department. 4. The appellant has impressed upon that similar matter has already been decided by the Division Bench of this Tribunal in Birla Corporation Ltd. vs. CGST, Jabalpur, Final Order No. 52486/2018 dated 3rd July, 2018 and same has been followed by the Single Bench of this Tribunal in decision of Jaypee Sidhi Cement and Hindustan Zinc Ltd. vs. CGST, Jabalpur and CGST Udaipur, vide Final Order No
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both the parties in both the said matters i.e. about the moot issue of the entitlement of the appellants to avail cenvat credit on the basis of supplementary invoices issued by the Coal Companies. In both these decisions, 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 cannot be made applicable in the given circumstances, unless and until there is some apparent positive act of the appellant on the record. Mere failure of ascertaining about the exclusion part of Rule 9 (1) (b) cannot be held to be the act of suppression or collusion on part of the appellant. Above all, the supplementary invoices have been issued by the Coal Companies, which are the undertakings of the Government of India, there can be no presumption, unless rebutted, of any alleged suppress
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