TMI Blog2020 (4) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... o evade payment of duty. The appellant is entitled for taking Cenvat credit on the strength of supplementary invoices - Appeal allowed - decided in favor of appellant. - Excise Appeal No. 53740 of 2018, 53773 of 2018 - Final Order No. 50999/2019 - Dated:- 24-7-2019 - HON BLE SHRI C.L. MAHAR, MEMBER (TECHNICAL) AND HON BLE MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Shri A.K. Prasad, Advocate for the appellant. Shri P. Juneja, Authorized Representative (DR) for the Respondent. ORDER C.L. MAHAR :- The brief facts of the matter are that the appellant is engaged in manufacture of cement and clinker falling under CETH 25 of 1st Schedule of Central Excise Tariff Act, 1985. The appellant is utilizing the coal for gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore the following two show cause notices as well as order-in-original on the same was issued and the details of same are reproduced here below :- Sl. No. SCN No. date Period involved Amount involved (in Rs.) O-in-O No. and date Gist of O-in-O O-in-A No. and date Gist of O-in-A 1. V(25)Adj./UDR/ 204/2015 dated 20/08/2015 August 2014 to May 2015 55,95,435/- 02/CE/UDR/ 2017-18 dated 24/05/2017 Full amount confirmed alongwith penalties of ₹ 5 Lakhs 1002- 1003 (CRM)/CE/ JDR/2018 dated 13/09/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature of taxes/ duties or not and further the issue whether they will be includable in the transaction value as per Section 4 of the Central Excise Act, 1944 for charging duty of excise would be decided. The learned Advocate has further contended that there is no denial of the fact that central excise duty has been paid on the subsidiary invoices issued by M/s SECL and therefore the appellant have rightly availed the Cenvat credit of the central excise duty which has been paid by them to the supplier of inputs. The learned Advocate has given a list of various decisions of this Tribunal on the issue wherein the Cenvat credit paid on the supplementary invoices have been allowed to the buyer of inputs. The learned Advocate has relied on the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned in para No. 3 above. The relevant extract of final order No. 52728 of 2018 dated 8 August 2018 in the case of M/s Hindustan Zinc Ltd. vs. Central Excise and Service Tax, Udaipur in this regard is reproduced here below :- 7. The issue involved in this Appeal is whether the Appellants are entitled to Cenvat Credit on the basis of supplementary invoices issued by the coal companies and whether the said credit stands denied in terms of Rule 9(1)(b) of the Cenvat Credit Rules which denies the credit if the supplementary invoices are issued for duties which became payable by the manufacturer on account of willful misstatement or suppression of facts on their part? 8. In order to appreciate the issue, I refer to the provisions of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted 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 and a similar view has been taken by this Tribunal on this issue consistently in favour of the Assessee in a number of decisions which are as under:- (i) Final order No. 52486/2018, dated 3.7.2018 in Excise Appeal No. 50308/2-10, titled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Birla Corporation Ltd. vs. CGST, CC CE, Udaipur, this Tribunal while allowing the Appeal filed by the Appellant therein held 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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