TMI Blog2018 (8) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... their part? Held that:- It is an admitted position that 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. 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 Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L. 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 11.09.2014 as to why:- i. Cenvat Credit of ₹ 30,36,820/- (Cenvat Credit 29,48,368+ Edu cess 58,965+SHE Cess 29,487) wrongly taken utilized by them should not be disallowed and recovered from them under Rule 14 of CENVAT Credit Rules, 2004 read with section 11-A(1) of the Central Excise Act, 1944; ii. Interest, as applicable on the wrongly taken and utilized Cenvat credit should not be recovered from them under Rule 14 of CENVAT Credit Rules, 2004 read with section 11-AA of the Central Excise Act, 1944; iii. Penalty should not be imposed upon them under Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r:- 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. E/ 50077/2018[SM], titled as Shri Barjrang Power Ispat Ltd. vs. CCE, Jaipur; (vi) Final Order No. 52723/2018, dated 27.07.2018 in Appeal No. E/51661/2018, titled as M/s Ultratech Cement Ltd. V/s CCE, Raipur; (vii) 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; (viii) 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. (ix) Final Order No. 52728/2018 dated 08.08.2018 in Appeal No. E/51489/2018-SMC, titled as Hindustan Zinc Ltd. V/s CE ST- Udaipur. 10. In all the aforementioned cases, which includes two cases of the Appellants also, in identical set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 wrong availment on part of M/s SECL is still a debatable issue. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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