2020 (4) TMI 414

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....appellant is utilizing the coal for generation of electricity in their power plant and availing the Cenvat credit of central excise duty paid on coal used for generation of electricity in their plant. The coal which is being procured by the appellant was supplied by the subsidiary company of M/s Coal India Limited namely M/s South Eastern Coal Fields Limited and Western Coal Fields Limited, Nagpur. There was a dispute at the supplier's end at the end of M/s SECL and WCL, Nagpur regarding inclusion of certain elements in the cost of the coal namely amount of royalty, SED (stowing excise duty), Niryat Tax, Development Tax and Environment Tax etc. It has been the contention of the Department at the supplier's end that the element of the cost o....

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....2015 dated 17/04/2018 Full amount confirmed with 10% of duty as penalty -do- -do- 3. The learned Advocate appearing for the appellant has submitted that the demand of duty on charges like royalty etc. is pending before Hon'ble Supreme Court in civil appeal No. 4056-5064/1999 in case of Mineral Area Development versus Steel Authority of India Limited. In this case, the Hon'ble Supreme Court vide their order dated 30 March 2011 have directed that matter be placed before 9 judges bench of the Supreme Court since there appear to be a conflict between the decision of 5 judges bench of Supreme Court in the case of State of West Bengal versus Kesoram Industries Limited reported in (2004) 10 S.C.C. 201 and the decision of 7 judge bench ....

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....ement Ltd. Unit Aditya Cement Works versus CE & ST, Udaipur vide final order No. 52782 of 2018 dated 17/08/2018 ; (iv) M/s DCM Shriram Ltd. versus CCE & ST, Udaipur vide final order No. 53021 of 2018 dated 09/08/2018; (v) Hindustan Zinc Ltd. versus CE & ST, Udaipur vide final order No. 52728 of 2018 dated 08/08/2018 ; (vi) J.K. Cement Works versus CE & ST, Dehradun vide final order No. 52719 of 2018 dated 06/08/2018; (vii) M/s Birla Corporation Ltd. versus CGST, CC & CE, Udaipur vide final order No. 52625 of 2018 dated 23/07/2018 ; (viii) M/s Ultratech Cement Ltd. versus CCE, Raipur vide final order No. 52611 of 2018 dated 23/07/2018; (ix) M/s Jaypee Sidhi Cement Plant versus CGST, CC & ....

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....ase 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 of the consignment agent of the said manufacturer or importer or from any other premises from where the goods are sold by, or on behalf of, the said manufacturer or importer, in case additional amount of excise duties or additional duty leviable under section 3 of the Customs Tariff Act, has been paid, except where the additional amount of duty became recoverable from the manufacturer or importer of inputs or capital goods on account of any non-levy or short-levy by reason of fra....

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....o. 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, titled as M/s. Birla Corporation Ltd. vs. CGST, CC & CE, Udaipur; (v) 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; (vi) Final Order No. 52710/2018, dated 30.7.2018 in Appeal No. E/52134/ 2016[DB], titled as M/s. Diamond Cements vs. CCE, Bhopal; (vii) Final order No. 52719/2018, dated 06.08.2018 in Appeal N....

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....at 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 is prior event than the appellant availing the credit on supplementary invoices issued by the aid M/s SECL but the simultaneous fat remains is that the demand against M/s SECL vide said show cause notice is still under challenge and is p....