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2019 (1) TMI 237 - AT - Central ExciseCENVAT Credit - duty paying invoices - supplementary invoices - issue pending adjudication - existence of confusion - Rule 9 (1) (b) of CCR - Held that:- Similar matter has already been decided by the Division Bench of this Tribunal in Birla Corporation Ltd. vs. CGST, Jabalpur, [2018 (7) TMI 1264 - CESTAT NEW DELHI] 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, [2018 (7) TMI 1279 - CESTAT NEW DELHI] - Since the main issue is still pending adjudication in the Hon’ble Apex Court that both the said decisions have considered that Rule 9 (1) (b) of CCR is not applicable to the given set of circumstances - 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 invoice has 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. Appeal allowed - decided in favor of appellant.
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