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2020 (4) TMI 71 - AT - Central ExciseCENVAT Credit - duty paying invoices - invoices issued but service tax on such invoices not discharged - Rule 9(1)(bb) of Cenvat credit Rules, 2004 - HELD THAT:- Undisputed facts is that though the service provider at the time of issuing of invoices did not pay the service tax but subsequently they discharged the service tax and no proceeding was initiated against the service provider, the entire matter was closed. Since, there is no SCN issued to the service provider nor any adjudication order was passed, it cannot be said that there is suppression of facts on the part of the service provider. The suppression of facts needs to be established only by way of issuing the SCN invoking proviso to Section 73 (1) and thereafter, by the adjudication if the suppression of facts is established. In the present case no such exercise was carried out, it is clear that the department has accepted that there is no suppression of facts. To establish suppression of fact, there is no option for the department except to issue a SCN and adjudicate the matter, therefore, at the appellants end on availment of cenvat credit and the suppression of facts on the service provider can neither be alleged nor can be decided, therefore, Rule 9(1)(bb) is not applicable. The appellant is clearly entitled for the cenvat credit as the case is not covered under Rule 9(1)(bb) - Appeal allowed - decided in favor of appellant.
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