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2010 (5) TMI 411 - AT - CustomsCenvat credit - cleared excisable goods - against Served from India Scheme (SFIS) certificate at nil rate of duty availing exemption under Notification 34/2006-C.E - separate accounts of inputs used in the manufacture of dutiable goods and in the exempted goods were not maintained the appellant was required to pay 10% of the total price of exempted goods as per Rule 6(3)(b) of Cenvat Credit Rules 2004 - no such payment was made - imposition of penalty under Rule 15 of Cenvat Credit Rules 2004 read with Section 11AC of Central Excise Act 1944 - debits made under DEPB script is equivalent to payment of duty in cash Held that; It is nobody s case that the functioning of SFIS certificate is different then the functioning of DEPB scheme. In DEPB scheme the exporters are issued DEPB which allow them specific amount to be utilized as customs duty while the SFIS scheme the service providers are issued SFIS certificate which allow them to import or procure indigenous goods without payment of duty by debiting the said script - debits made in SFIS would not amount to exemption from payment of duty - order is liable to be set aside.
Issues Involved:
1. Whether the appellant is required to pay 10% of the value of goods cleared under the Served from India Scheme (SFIS). 2. Interpretation of Notification No. 34/2006-C.E., dated 14-6-2006. 3. Applicability of Rule 6(3)(b) of Cenvat Credit Rules, 2004. 4. Clarification provided by CBEC Circular No. 837/14/2006-CX, dated 3-11-2006. 5. Relevance of prior judgments and their applicability to the current case. Issue-wise Detailed Analysis: 1. Whether the appellant is required to pay 10% of the value of goods cleared under the Served from India Scheme (SFIS): The appellant cleared goods valued at Rs. 29,12,000/- against SFIS certificates at a 'nil' rate of duty, availing exemption under Notification No. 34/2006-C.E., dated 14-6-2006. As separate accounts of inputs used for dutiable and exempted goods were not maintained, Rule 6(3)(b) of Cenvat Credit Rules, 2004 required the appellant to pay 10% of the total price of exempted goods. The appellant did not make this payment, leading to a show cause notice for Rs. 2,91,200/-. The Adjudicating Authority confirmed the demand and imposed penalties and interest. The Commissioner (Appeals) upheld this decision, leading to the current appeal. 2. Interpretation of Notification No. 34/2006-C.E., dated 14-6-2006: Notification No. 34/2006-C.E. grants exemption to goods supplied to service providers under the SFIS, subject to specific conditions. The exemption applies if the SFIS certificate is produced before the jurisdictional Central Excise Officer at the time of clearance for debiting duties. The appellant argued that the debits made in the SFIS certificates amount to duty payment, not exemption. 3. Applicability of Rule 6(3)(b) of Cenvat Credit Rules, 2004: The Revenue contended that since the goods were cleared without payment of duty, Rule 6(3)(b) applied, requiring the appellant to pay 10% of the value of exempted goods. The appellant argued that the debits made in the SFIS certificates should be considered as duty payment, thus not attracting Rule 6(3)(b). 4. Clarification provided by CBEC Circular No. 837/14/2006-CX, dated 3-11-2006: The CBEC Circular clarified that for goods cleared under the SFIS, the original SFIS certificate must be produced for debiting duties. This procedure ensures that the duty liability is discharged through debits in the SFIS scrip, equating to duty payment rather than exemption. 5. Relevance of prior judgments and their applicability to the current case: The appellant relied on the Tribunal's decision in Tanfac Industries Ltd. v. CCE, which held that debits in DEPB scripts amount to duty payment. This decision was affirmed by the Hon'ble High Court of Judicature at Madras and the Hon'ble Supreme Court. The Tribunal found that the SFIS scheme operates similarly to the DEPB scheme, where debits in the scrips are considered duty payment. Conclusion: The Tribunal concluded that the debits made in the SFIS certificates amount to duty payment and not exemption. Therefore, Rule 6(3)(b) of Cenvat Credit Rules, 2004 does not apply. The impugned order was set aside, and the appeal was allowed with consequential relief. The decision was pronounced in open court on 24-5-2010.
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