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2019 (1) TMI 237 - AT - Central ExciseCENVAT Credit - duty paying invoices - supplementary invoices - issue pending adjudication - existence of confusion - Rule 9 (1) (b) of CCR - Held that - Similar matter has already been decided by the Division Bench of this Tribunal in Birla Corporation Ltd. vs. CGST, Jabalpur, 2018 (7) TMI 1264 - CESTAT NEW DELHI and same has been followed by the Single Bench of this Tribunal in decision of Jaypee Sidhi Cement and Hindustan Zinc Ltd. vs. CGST, Jabalpur and CGST Udaipur, 2018 (7) TMI 1279 - CESTAT NEW DELHI - Since the main issue is still pending adjudication in the Hon ble Apex Court that both the said decisions have considered that Rule 9 (1) (b) of CCR is not applicable to the given set of circumstances - issue being already sub-judiced the element of confusion cannot be ruled out. Suppression being altogether contradictory to confusion cannot be made applicable in the given circumstances, unless and until there is some apparent positive act of the appellant on the record. Mere failure of ascertaining about the exclusion part of Rule 9 (1) (b) cannot be held to be the act of suppression or collusion on part of the appellant. Above all, the supplementary invoice has been issued by the Coal Companies which are the undertakings of the Government of India, there can be no presumption, unless rebutted, of any alleged suppression or collusion. Appeal allowed - decided in favor of appellant.
Issues:
Appeal against denial of Cenvat Credit based on supplementary invoices issued by manufacturer. Analysis: The appellant, a manufacturer of Sponge Iron, appealed against the denial of Cenvat Credit by the Commissioner (Appeals) based on supplementary invoices issued by subsidiary companies of Coal India Ltd. The Department alleged that the appellant took Cenvat Credit on the basis of these invoices, which was barred under Rule 9(1)(b) of the Cenvat Credit Rules, 2004. The Original Adjudicating Authority confirmed the demand, leading to the present appeal. The appellant argued that similar cases had been decided in their favor by the Tribunal, citing precedents like Birla Corporation Ltd. and Jaypee Sidhi Cement. They contended that Rule 9(1)(b) was not applicable to their circumstances, especially since the main issue was pending adjudication in the Apex Court. The Department, however, emphasized the appellant's failure to ascertain if the invoices were covered by the exclusion clause of Rule 9(1)(b), suggesting possible suppression and collusion. After considering both parties' arguments and the precedents cited, the Tribunal noted the pending matters related to South Eastern Coal Field Ltd. before the Apex Court, leading to confusion in the application of Rule 9(1)(b). The Tribunal found no evidence of suppression or collusion on the appellant's part, especially since the invoices were issued by government undertakings. It was held that mere failure to ascertain the exclusion part of the rule did not amount to suppression or collusion. Therefore, the order under challenge was set aside, and the appeal was allowed based on the lack of fraud or suppression and the recurring nature of the issue. In conclusion, the Tribunal's decision to allow the appeal was based on the absence of fraud or suppression, the confusion surrounding the application of Rule 9(1)(b) in pending matters, and the fact that the invoices were issued by government undertakings. The appellant was deemed entitled to take Cenvat Credit on the supplementary invoices in question, in line with the Tribunal's previous decisions and observations.
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