TMI Blog2018 (8) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In identical set of facts involving the same coal company i.e. M/s. SECL, this Tribunal has allowed the Cenvat Credit 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 was a debatable issue which is pending adjudication before the Hon’ble Supreme Court. The Appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ₹ 1,02,392/- during the period March, 2011 to September, 2015 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 02.02.2016 as to why:- i. An amount of ₹ 1,02,392/- (Rs. One Lac Two Thousand Three Hundred Ninety Two only) as explained herein above, should not be recovered from them under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A of the Central Excise Act 1944. ii. Interest should not be charged from them under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11AA of Central Excise Act, 1944. iii. Penalty should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val 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 of South Eastern Coal Fields Ltd. and ors. and also other cases, referred to in the above case, disposed of the appeal of the South Eastern Coal Fields Ltd., granting liberty to them to come again after having final verdict from the Hon ble Supreme Court. Moreover, we are satisfied that there is no element of fraud and suppression on the part of the appellant. The issue herein is recurring in nature. Accordingly, we allow this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount 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 the manufacturer or importer of inputs or capital goods 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 provisions of the Excise Act, or of the Customs Act, 1962 (52 of 1962) or the rules made thereunder with intent to evade payment of duty. Explanation.- For removal of doubts, it is clarified that supplementary invoice shall also include challan or any other similar document evidencing payment of additional amount of additional duty leviable under section 3 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; (vii) Final order No. 52719/2018, dated 06.08.2018 in Appeal No. E/51634/2018-SMC, titled as J.K. Cement Works V/s CE ST, Dehradun. 10. In all the aforementioned cases, in identical set of facts involving the same coal company i.e. M/s. SECL, this Tribunal has allowed the Cenvat Credit 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 was a debatable issue which is pending adjudication before the Hon ble Supreme Court. 11. In Final order No. 52625/2018, da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior 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 wrong availment on part of M/s SECL is still a debatable issue. In such circumstances, the ascertainment on part of the appellant as is required under Rule 9 (1) (b) of Cenvat Credit Rules cannot be held to have been an act of suppression. 13. Therefore, in view of the facts of the present case and in view of the various decision of this Tribunal on identical set of facts, I set aside the impugned order and allow the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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