TMI Blog2018 (8) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed - decided in favor of appellant. - Excise Appeal No. E/51284/2018 - [SM] - A/52611/2018-SM[BR] - Dated:- 23-7-2018 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Hemant Bajaj, Advocate Present for the Respondent: Mr. H.C. Saini, D.R. ORDER PER: RACHNA GUPTA Present is an appeal against the order of Commissioner (Appeals) bearing No. BHO-EX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clean Energy Cess, Transit Fee etc. The said credit is alleged to have been barred in view of Rules 9 (1) (b) of CCR 2004. 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. I have heard Shri Hemant Bajaj, ld. Advocate for the appellant and Shri H.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impressed upon the Rules specifically pointing out para No. 9 of the order. It is impressed upon that it was the duty of the appellant itself to ascertain as to whether supplementary invoices so issued were on account of any such factor, which is covered/hit by the exclusion clause of Rule 9 (1) (b). Since the appellant has failed to ascertain the same, the alleged suppression and collusion cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontradictory 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Hon ble Supreme Court. Moreover, we are satisfied that there is 4 Excise Appeal No.50308/2018 no element of fraud and suppression on the part of the appellant. The issue herein is recurring in nature. Accordingly, we allow this appeal and hold that the appellant is entitled to take cenvat credit on the supplementary invoices in question. Thus, the appeal is allowed with consequential relief ..... X X X X Extracts X X X X X X X X Extracts X X X X
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