TMI Blog2018 (8) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 - the issue of wrong availment on part of M/s SECL is still a debatable issue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the appellant that the main issue of valuation is subjudiced before Hon ble Apex Court. The appellant herein has availed the Cenvat Credit on the supplementary invoice issued by the main manufacturer i.e. South Eastern Coal Fields. It is brought to the notice that the similar identical matters have already been decided in favour of the appellants. The case of appellant is impressed upon to fall squarely within the facts of all such decisions. The present appeal is accordingly, prayed to be allowed. 4. Ld. D.R., per-contra, has submitted that merely pendency of adjudication against M/s. South Eastern Coal Fields before the Hon ble Apex Court, cannot be made the criteria for the appeal to be allowed. It is impressed upon that as far a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... positive act of the appellant on the record amounting suppression of fact. 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. 6. The observations from the Tribunal decision in the case of Birla Corporation Ltd. Vs. CGST, Jabalpur, Final Order No. 52486/2018 dated 3.7.2018 and another in Ultratech Cement Ltd. Vs. CCE, Raipur Final Order No. 52611/2018 dated 23.7.2018 are reproduced below: - 7. Having considered the riv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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