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TMI Blog2018 (8) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... od March, 2011 to February, 2013 and demand was confirmed (Royalty charge) under the erstwhile Sections 11A and 11A(5) of the Central Excise Act, 1944. Although M/s. SECL paid the differential duty but passed on the Cenvat Credit by issuing supplementary invoices. According to the department any supplementary bill showing payment of duty on the abovementioned charges for the invoice during the period March, 2011 to February, 2013 will fall under the exclusion clause of Rule 9(1)(b) of Cenvat Credit Rules, 2004 for the purpose of taking Cenvat Credit. 3. The Appellants are engaged in manufacture of Ordinary Portland Cement (OPC), Pozzolana Portland Cement (PPC) and Cement Clinker. They availed and utilized the Cenvat Credit amounting to Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court being Civil Appeal No.4056- 5064 of 1999; titled as Mineral Area Development vs. Steel Authority of India Ltd. and therefore the denial of Cenvat credit by the department on the ground of fraud, suppression is not tenable. She further submitted that in an identical matter titled as M/s Birla Corporation Ltd. vs. CGST, CC & CE, Jabalpur, this Tribunal vide Final order No. 52486 of 2018 dated 3.7.2018 in Excise Appeal No. 50308/2010 allowed the Cenvat Credit availed by the Appellant therein holding that there cannot be suppression of fact when the issue of liability of payment of Excise duty at the end of the coal companies is pending adjudication before the Hon'ble Supreme Court. The relevant extract of the said or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e credit if the supplementary invoices are issued for duties which became payable by the manufacturer on account of willful misstatement or suppression of facts on their part? 8. In order to appreciate the issue, I refer to the provisions of Rule 9(1)(b) of Cenvat Credit Rules, 2004 which is reproduced as under:- "Rule 9. Documents and accounts.- (1) The CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following documents, namely:- (b) a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stent view has been taken by this Tribunal on this issue in favour of the Assessee in a number of decisions which are as under:- (i) Final order No. 52486/2018, dated 3.7.2018 in Excise Appeal No. 50308/2-10, titled as M/s. Birla Corporation Ltd. vs. CGST, CC & CE, Jabalpur; (ii) Final Order No. 52540-41/2018, dated 18.7.2018 in Appeal No. E/ 50633/2018-SMC, titled as Jaypee Sidhi Cement Plant vs. CGST C.C. & C.E., Jabalpur; and Appeal No. E/51064/2018-SMC titled as Hindustan Zinc Ltd. vs. CE & ST, Udaipur; (iii) Final Order No. 52611/2018, dated 23.7.2018 in Excise Appeal No. E/ 51284/2018-[SM], titled as M/s. Ultratech Cement Ltd. vs. CCE, Raipur; (iv) Final Order No. 52625/2018, dated 23.7.2018 in Excise Appeal No. 51278/2018, ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter having final verdict from the Hon'ble Supreme Court. Moreover, we are satisfied that there is no element of fraud and suppression on the part of the appellant. The issue herein is recurring in nature. Accordingly, we allow this appeal and hold that the appellant is entitled to take cenvat credit on the supplementary invoices in question. Thus, the appeal is allowed with consequential relief to the appellant. " 12. Similarly in Final Order No. 52640/2018, dated 23.7.2018 in Excise Appeal No. E/ 50077/ 2018 [SM], titled as Shri Barjrang Power & Ispat Ltd. vs. CCE, Jaipur, this Tribunal while allowing the Appeal filed by the Appellant therein held as under:- "7. No doubt, it is apparent on record that the show cause notice to M/s SECL ..... X X X X Extracts X X X X X X X X Extracts X X X X
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