2019 (4) TMI 1899 - AT - Central Excise

CENVAT Credit - supplementary invoices - suppression of facts or not - extended period of limitation - HELD THAT - The matter no longer res integra as the issue involved in this appeal has already been decided by this Tribunal in the case of M/S. JAYPEE BELA PLANT VERSUS COMMISSIONER OF GST CC CE JABALPUR 2018 (9) TMI 906 - CESTAT NEW DELHI where it was held 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. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Availment of cenvat credit on supplementary invoices issued by a coal company.
2. Allegations of suppression, collusion, or wilful mis-statement to evade payment of duty.
3. Legal sustainability of demanding reversal of cenvat credit under Rule 9 of Central Credit Rules, 2004.
4. Entitlement to cenvat credit under Rule 9(1) B of Cenvat Credit Rules, 2004.
5. Interpretation of the provisions of Rule 9(1) B in the context of the case.
6. Precedents set by the Tribunal in similar cases involving coal companies and cenvat credit on supplementary invoices.
7. Pending litigation against the coal supplier and its impact on the appellant's cenvat credit claim.

Analysis:
The appellant, engaged in manufacturing Sponge Iron and Angle/Beams, availed cenvat credit of excise duty paid on inputs, input services, capital goods, and service tax. They purchased coal from a subsidiary of Coal India Ltd., using it in manufacturing sponge iron and availing cenvat credit on the excise duty paid on coal. The Department raised concerns regarding the valuation of coal supplied, suggesting certain cost elements be included in assessable value for excise duty payment. The Department alleged suppression, collusion, or wilful mis-statement to evade duty, leading to a show cause notice demanding reversal of cenvat credit, penal provisions, and interest. The Commissioner (Appeals) confirmed the charges, prompting the appeal.

The appellant contended that they rightfully availed cenvat credit based on supplementary invoices issued by the coal company, a Public Sector Undertaking, without any intent to evade duty. They argued that demanding reversal of cenvat credit under Rule 9 of Central Credit Rules, 2004 was legally unsustainable. The Tribunal referred to precedents where similar issues were addressed, emphasizing the entitlement of the appellant to cenvat credit on supplementary invoices issued by government undertakings. The Tribunal noted that the issue of wrong availment by the coal supplier was debatable, given the pending litigation.

In line with previous rulings, the Tribunal found the impugned order lacked merit and set it aside, allowing the appeal. The Tribunal highlighted that the appellant's actions did not amount to suppression, fraud, or collusion, especially considering the nature of the issue and the involvement of a government undertaking. The Tribunal's decision was influenced by the ongoing litigation against the coal supplier, indicating a lack of conclusive evidence of wrongdoing by the appellant. Consequently, the appellant was deemed entitled to cenvat credit on the supplementary invoices, leading to the allowance of the appeal.