9911796707
TMI Blog2018 (8) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... has denied the admissibility of said credit to the appellants in terms of Rule 9 (1) (b) of Cenvat Credit Rules. Accordingly, a show cause notice dated 19.1.2015 was issued to the appellant for the recovery thereof. The said recovery was initially confirmed by Order of Original Adjudicating Authority dated 30.3.2016 and the findings have been confirmed vie the order ld. Commissioner (Appeals) bearing No. 21/Pr. Commr./CEX/SGR-I/2016 dated 30.2.2016. Being aggrieved is the present appeal. 2. We have heard Shri Shantanu, ld. Advocate for the appellant and Shri M.R. Sharma, ld. D.R. for the Department. 3. It is submitted on behalf of the appellant that the main issue of valuation is subjudiced before Hon'ble Apex Court. The appellant herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . After hearing both the parties and perusing the decisions as impressed upon, we observe that the moot issue is about the entitlement of the appellants to avail cenvat credit on the basis of supplementary invoices issued by the Coal Companies. It has been specifically noted that the connected matters of South Eastern Coal Field Ltd. are pending adjudication before the Hon'ble Apex Court. Issue being already sub-judiced the element of confusion cannot be ruled out. 'Suppression' being altogether contradictory to 'Confusion', the same cannot be made applicable in the given circumstances, unless and until there is some apparent positive act of the appellant on the record amounting suppression of fact. Mere failure of ascertaining about the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in question. Thus, the appeal is allowed with consequential relief to the appellant." 7. No doubt, it is apparent on record that the show cause notice to M/s. SECL is prior event than the appellant availing the credit on supplementary invoices issued by the said M/s. SECL but the simultaneous fact remains is that the demand against M/s. SECL vide said show cause notice is still under challenge and is pending adjudication before the Hon'ble Apex Court. It is clear to hold 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. 8. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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