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TMI Blog2018 (8) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... ar, forest fee, entry tax etc. during the period September, 2013 and demand was confirmed (Royalty charge) under the erstwhile Sections 11A and 11A(5) of the Central Excise Act, 1944. Although M/s. SECL paid the differential duty but passed on the Cenvat Credit by issuing supplementary invoices. According to the department any supplementary bill showing payment of duty on the abovementioned charges for the invoice during the period in question 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 availed and utilized the Cenvat Credit amounting to Rs. 30,36,820/- during the period September, 2013 on the strength of supplementary invoices issued by M/s SE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 056- 5064 of 1999; titled as Mineral Area Development vs. Steel Authority of India Ltd. and therefore the denial of Cenvat credit by the department on the ground of fraud, suppression is not tenable. He further submitted that in an identical matter titled as M/s Birla Corporation Ltd. vs. CGST, CC & CE, Jabalpur, this Tribunal vide Final 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to appreciate the issue, I refer to the provisions of Rule 9(1)(b) of Cenvat Credit Rules, 2004 which is reproduced as under:- "Rule 9. Documents and accounts.- (1) The CENVAT credit shall 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2018 in Excise Appeal No. 50308/2-10, titled as M/s. Birla Corporation Ltd. vs. CGST, CC & CE, Jabalpur; (ii) Final Order No. 52540-41/2018, dated 18.7.2018 in Appeal No. E/ 50633/2018-SMC, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 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 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 to the appellant. " 12. Similarly in Final Order No. 52640/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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