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2018 (8) TMI 448 - AT - Central ExciseCENVAT Credit - duty paying invoices - supplementary invoices, raised by M/s. South Eastern Coalfields Ltd., for supply of coal - Rule 9(1)(b) of CCR 2004 - matter pending adjudication - Held that - Tribunal in connected matter of South Eastern Coalfield 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. The appellant is entitled to take cenvat credit on the supplementary invoices in question - There is no element of fraud and suppression on the part of the appellant. The issue herein is recurring in nature - appeal allowed - decided in favor of appellant.
Issues:
1. Objection by Revenue on taking cenvat credit on supplementary invoices for coal supply. 2. Validity of cenvat credit on additional excise duty & cess charged on coal. 3. Interpretation of Rule 9(1)(b) of CCR 2004 regarding cenvat credit entitlement. 4. Disallowance of cenvat credit by Revenue based on alleged short payment of duty by supplier. 5. Legal debate on inclusion of charges in assessable value and denial of cenvat credit. 6. Tribunal's consideration of fraud, suppression, and recurring nature of the issue. Detailed Analysis: 1. The primary issue in this judgment revolves around the objection raised by the Revenue regarding the appellant's entitlement to cenvat credit on supplementary invoices for coal supply. The dispute arose when the appellant purchased coal as an input and received additional invoices charging excise duty & cess, leading to a disallowance of cenvat credit by the adjudicating authority, upheld by the commissioner (A). 2. The validity of the cenvat credit claimed on the additional excise duty & cess charged on coal by the supplier, M/s. South Eastern Coalfields Ltd., was questioned by the Revenue. The appellant had paid the additional duty & cess and taken credit in their cenvat register, which was deemed invalid under Rule 9(1)(b) of the CCR 2004, resulting in a show cause notice and subsequent disallowance of the credit. 3. The interpretation of Rule 9(1)(b) of the CCR 2004 regarding the appellant's entitlement to cenvat credit on the supplementary invoices was a crucial aspect of the case. The appellant argued that the issue of including charges like royalty charges in the assessable value was subjudice before the Supreme Court, making the denial of cenvat credit by the Revenue on grounds of fraud and suppression untenable. 4. Another significant issue addressed in the judgment was the Revenue's contention that the appellant was not entitled to cenvat credit due to the alleged short payment of duty by the supplier, M/s. South Eastern Coalfields Ltd. The Revenue claimed that the supplier had not included certain charges in the transaction value at the time of issuing original invoices, leading to the subsequent issuance of supplementary invoices. 5. The legal debate on the inclusion of charges in the assessable value and the denial of cenvat credit based on alleged fraud and suppression was thoroughly examined. The appellant's counsel relied on a previous order by the Tribunal in the appellant's favor on a similar issue, emphasizing the debatable nature of the inclusion of charges like royalty charges in the assessable value. 6. The Tribunal, after considering the arguments from both sides, concluded that there was no element of fraud or suppression on the part of the appellant. Additionally, the Tribunal noted the recurring nature of the issue and referred to a previous case involving South Eastern Coalfields Ltd., where the matter was pending before the Supreme Court. Consequently, the Tribunal allowed the appeal, holding that the appellant was entitled to take cenvat credit on the supplementary invoices in question, providing consequential relief to the appellant.
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