TMI Blog2018 (8) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebruary, 2013 will fall under the exclusion clause of Rule 9(1)(b) of Cenvat Credit Rules, 2004 for the purpose of taking Cenvat Credit. 3. The Appellants are engaged in manufacture of Ordinary Portland Cement (OPC), Pozzolana Portland Cement (PPC) and Cement Clinker. They availed and utilized the Cenvat Credit amounting to ₹ 10,19,764/- during the period March, 2011 and April, 2012 on the strength of supplementary invoices issued by M/s SECL. Since the same falls under the exclusion clause of Rule 9(1)(b) of Cenvat Credit Rules, 2004, therefore, for its recovery the department issued show cause notice dated 24.9.2015 as to why:- (i) Cenvat Credit of ₹ 10,19,764/- (Cenvat Credit 990061/- + Edu cess 19802/- + SHE cess 990 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l order No. 52486 of 2018 dated 3.7.2018 in Excise Appeal No. 50308/2010 allowed the Cenvat Credit availed by the Appellant therein 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 is pending adjudication before the Hon ble Supreme Court. The relevant extract of the said order of this Tribunal is extracted as under:- 7. Having considered the rival contentions of both the sides, we take notice that this Tribunal in connected matter of South Eastern Coalfields Ltd. in Appeal No.52023-52026/2014-DB dated 3.4.2017 vide Final Order No.52723-52726/2017 dated 3.4.2017, taking notice of pendency of similar matter before the Hon ble Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following documents, namely:- (b) a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises of the consignment agent of the said manufacturer or importer or from any other premises from where the goods are sold by, or on behalf of, the said manufacturer or importer, in case additional amount of excise duties or additional duty leviable under section 3 of the Customs Tariff Act, has been paid, except where the additional amount of duty became recoverable from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , titled as Jaypee Sidhi Cement Plant vs. CGST C.C. C.E., Jabalpur; and Appeal No. E/51064/2018-SMC titled as Hindustan Zinc Ltd. vs. CE ST, Udaipur; (iii) Final Order No. 52611/2018, dated 23.7.2018 in Excise Appeal No. E/ 51284/2018-[SM], titled as M/s. Ultratech Cement Ltd. vs. CCE, Raipur; (iv) Final Order No. 52625/2018, dated 23.7.2018 in Excise Appeal No. 51278/2018, titled as M/s. Birla Corporation Ltd. vs. CGST, CC CE, Udaipur; (v) Final Order No. 52640/2018, dated 23.7.2018 in Excise Appeal No. E/ 50077/2018[SM], titled as Shri Barjrang Power Ispat Ltd. vs. CCE, Jaipur; (vi) Final Order No. 52710/2018, dated 30.7.2018 in Appeal No. E/52134/ 2016[DB], titled as M/s. Diamond Cements vs. CCE, Bhopal; 10. In all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, the appeal is allowed with consequential relief to the appellant. 12. Similarly in Final Order No. 52640/2018, dated 23.7.2018 in Excise Appeal No. E/ 50077/ 2018 [SM], titled as Shri Barjrang Power Ispat Ltd. vs. CCE, Jaipur, this Tribunal while allowing the Appeal filed by the Appellant therein held as under:- 7. No doubt, 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 aid M/s SECL but the simultaneous fat 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. It is clear to hold that the issue of wr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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