Custom, Excise & Service Tax Tribunal Singhal Enterprises Private Limited vs Raipur on 3 February, 2022 1 CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL NEW DELHI. PRINCIPAL BENCH COURT NO. II Excise Appeal No. 50695 of 2019SM (Arising out of orderinappeal No. BHOEXCUS002APP4891819 dated 28.01.2019 passed by the Commissioner (Appeals), Central Goods & Service Tax, Central Excise & Customs, Raipur). M/s Singhal Enterprises Pvt. Ltd., Appellant Village Taraimal, P. O. Gerwani Distt Raigarh (C.G.) VERSUS Commissioner, Customs & Central Respondent Goods, Service Tax & Excise Central Excise Building Dhamtari Road, Tikrapara Raipur 492001 (C.G.) APPEARANCE: Shri H. V. Ghirnikar, Advocate for the appellant Shri Mahesh Bhardwaj, Authorised Representative for the respondent HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) FINAL ORDER NO. 50155/2022 DATE OF HEARING/DECISION: 03.02.2022 ANIL CHOUDHARY: The issue involved is whether the appellant have rightly taken cenvat credit on supplementary invoices issued by the Public Sector Undertaking South Eastern Coalfield Limited, wherein the excise duty was charged on items Royalty, Stowing Excise Duty, Forest Cess, Terminal Tax, C. G. Vikas Upkar, Entry Tax and C. G. Paryavaran upkar etc. 2 2. Brief facts of the case are that the appellant is a manufacturer of sponge iron, for which the major input is coal. For such requirement the appellant has got coal linkage with South Eastern Coalfield Limited (SECL). As per practice and understanding, in the original invoice, South Eastern Coalfield Limited did not charge excise duty on the additional levies made in the invoice like royalty, cess etc. However, subsequently on the Excise Department insisting that all these levies like royalty, cess etc. forms part of the coal cost, and the coal companies are required to pay excise duty on these items also. Thus, SECL raised supplementary invoices and charged the excise duty (for past clearances) on these items also, which the appellant has admittedly paid. Accordingly, appellant took cenvat credit of the excise duty. Subsequently, Revenue issued show cause notice dated 14.09.2017, for the period 201314 and 201617 by invoking the extended period of limitation, as it appeared to Revenue that taking of cenvat credit is bad in terms of Rule 9 of Cenvat Credit Rules, which disables taking of cenvat credit on the basis of supplementary invoice wherein the element of fraud, suppression etc. is there. The show cause notice was adjudicated on contest and the proposed disallowance of cenvat credit was confirmed amounting to Rs.11,11,191/ alongwith penalty of Rs.11,49,510/ and Rs.38,319/. 3. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), who agreeing with the findings of the Assistant Commissioner have dismissed the appeal. Being aggrieved, the appellant is before this Tribunal. 3 4. Learned Counsel for the appellant urges that there is no malafide or suppression of facts or fraud etc. in the supplementary invoices raised. All along in the past the aforementioned items were not subjected to excise duty and were separately charged in the invoice of the coal company. Subsequently, on insistence by Revenue, the coal company have started charging excise duty on the aforementioned items being royalty etc., the dispute is subjudice before the Hon'ble Supreme Court. Learned Counsel also relies on the ruling of Division Bench of this Tribunal in the case of Jay Pee Bela Plant vs. CGST 2017 (369) ELT 766, wherein this Tribunal have taken notice of the pending dispute between the coal companies and the Revenue Department regarding chargeability of excise duty or royalty etc. Accordingly, he prays for allowing the appeal with consequential benefits. 5. Learned Authorised Representative Shri Mahesh Bhardwaj appearing for the Revenue relies on the impugned order. 6. Having considered the rival contentions, and in view of the facts and circumstances that it was the practice in the coal company that excise duty is not chargeable on royalty etc. these items being in the nature of levy of tax or fee, they were not charging excise duty. The SECL (a PSU) charged duty on royalty, cess etc. vide supplementary invoice only on substantial dispute raised by the Central Excise Department. The coal company started charging excise duty on these items which is subjudice before the higher Courts. In this view of the matter, I hold that there is no element of fraud, suppression etc. di