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2018 (9) TMI 906 - CESTAT NEW DELHICENVAT 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. 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 a debatable issue - the ascertainment on part of the appellant as is required under Rule 9 (1) (b) of Cenvat Credit Rules cannot be held to have been an act of suppression. Appeal allowed - decided in favor of appellant.
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