2020 (4) TMI 414 - AT - Central Excise

CENVAT Credit - duty paying documents - supplementary invoices issued by M/s SECL - Rule 9 (1) (b) of Cenvat Credit Rules, 2004 - HELD THAT - It has already been held in the case of HINDUSTAN ZINC LTD VERSUS CE ST-UDAIPUR 2018 (8) TMI 549 - CESTAT NEW DELHI that 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. The appellant is entitled for taking Cenvat credit on the strength of supplementary invoices - Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether the appellant is entitled to Cenvat credit on supplementary invoices issued by coal companies?
2. Whether the exclusion clause of Rule 9(1)(b) of Cenvat Credit Rules, 2004 applies to the case?

Analysis:
1. The appellant, engaged in cement and clinker manufacturing, used coal for electricity generation and claimed Cenvat credit on central excise duty paid on coal. The coal was supplied by SECL and WCL, with disputes over elements like royalty, SED, and taxes. The Department contended that Cenvat credit on supplementary invoices from SECL was not valid under Rule 9(1)(b). Two show cause notices were issued, leading to orders confirming dues and penalties. The appellant argued that the matter was pending before the Supreme Court, citing conflicts in previous judgments. The appellant justified the Cenvat credit based on previous tribunal decisions allowing such credits on supplementary invoices.

2. The Tribunal reviewed the matter and referred to a previous case involving Hindustan Zinc Ltd. where Cenvat credit was allowed on supplementary invoices from coal companies. The Tribunal analyzed Rule 9(1)(b) of Cenvat Credit Rules, emphasizing that credit can be availed unless duties were payable due to fraud or suppression. Given the pending challenge against SECL, the Tribunal held that the appellant rightfully availed the credit. The Tribunal cited multiple cases where similar credits were allowed, emphasizing the recurring nature of the issue. Consequently, the Tribunal allowed the appeal, stating that the appellant was entitled to Cenvat credit on the disputed supplementary invoices.

In conclusion, the Tribunal ruled in favor of the appellant, allowing the Cenvat credit on the supplementary invoices issued by SECL and WCL. The Tribunal highlighted the absence of fraud or suppression, consistent with previous decisions on similar cases. The impugned order-in-appeal was deemed without merit, leading to the setting aside of the order and allowing the appeals.