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2018 (8) TMI 474 - AT - Central ExciseCENVAT Credit - duty paying documents - supplementary invoices - exclusion clause of Rule 9(1)(b) of Cenvat Credit Rules, 2004 - issue pending adjudication before Supreme Court - suppression of facts or not? Whether the Appellants are entitled to Cenvat Credit on the basis of supplementary invoices issued by the coal companies and whether the said credit stands denied in terms of Rule 9(1)(b) of the Cenvat Credit Rules which denies the credit if the supplementary invoices are issued for duties which became payable by the manufacturer on account of willful misstatement or suppression of facts on their part? Held that:- It is an admitted position that demand raised by the department against M/s. SECL is under challenge before the Hon’ble Supreme Court and therefore the Cenvat credit can be availed by the manufacturer on the strength of supplementary invoice since such amount of duty cannot be said to be paid on account of any non-levy or short levy by reason of fraud, collusion or any willful mis-statement or suppression of facts or contravention of any provision of the Central Excise Act/Rules with intent to evade payment of duty - a consistent view has been taken by this Tribunal on this issue in favour of the Assessee in a number of decisions. In the case of M/S BIRLA CORPORATION LTD. VERSUS CGST, CC & CE, JABALPUR [2018 (7) TMI 1264 - CESTAT NEW DELHI], in identical set of facts involving the same coal company i.e. M/s. SECL, this Tribunal has 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 before the Hon’ble Supreme Court. Appellant is entitled to take Cenvat Credit on the supplementary invoices in question - appeal allowed - decided in favor of appellant.
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