2010 (1) TMI 587 - AT - Central Excise

Cenvat credit - on Special Additional Duty (SAD) paid on imported inputs/capital goods, debited the amount of duty to the extent in various licenses obtained by them under DFCE/DEPB and Target Plus schemes - Revenue in the show cause notice that the appellant should have paid the amount of SAD by cash and could have availed the credit of the duty if the amount has been paid in cash and mere debit in the licences obtained by them cannot be eligible for availment of Cenvat credit Held that - Customs authorities have not issued any show cause notice nor there is any direction from the authorities to the appellant that they have to pay such amount in cash - If the appellant has paid the 4% SAD as leviable under Section 3 of the Customs Tariff Act,. the eligibility to avail credit is allowed by Cenvat Credit Rules and also under the relevant notifications - order denying the Cenvat credit to the appellant is incorrect and is liable to be set aside.

Summary

Issues:
1. Eligibility to avail Cenvat credit on Special Additional Duty (SAD) paid on imported inputs/capital goods by debiting the amount of duty to the extent in various licenses obtained under DFCE/DEPB and Target Plus schemes.
2. The non-imposition of penalty by the adjudicating authority on the appellant despite holding that the appellant had availed ineligible Cenvat credit.

Issue 1: Eligibility for Cenvat Credit on SAD:
The appellant had availed Cenvat credit on SAD paid by debiting the amount of duty to the extent in various licenses obtained under DFCE/DEPB and Target Plus schemes. The Revenue contended that the appellant should have paid the SAD amount in cash to be eligible for Cenvat credit, instead of debiting licenses. The adjudicating authority upheld the Revenue's contention, concluding that the appellant was not entitled to the credit. The appellant argued that the customs authorities had accepted the payment method, and relevant notifications permitted such credit. The Tribunal analyzed the rules and notifications, noting that the appellant had paid the SAD through debiting licenses, and there was no challenge from the customs authorities. The Tribunal held that the appellant was entitled to avail the credit under Cenvat Credit Rules and relevant notifications, setting aside the order denying the credit.

Issue 2: Non-imposition of Penalty:
The Revenue was aggrieved by the non-imposition of penalty on the appellant despite finding the Cenvat credit as ineligible. The appellant's counsel argued that the benefit of the notification allowing credit on duty paid under Section 3 of the Customs Tariff Act could not be challenged at the lower end. The Tribunal, after considering both sides' submissions, set aside the order denying Cenvat credit to the appellant, thereby rendering the question of imposing a penalty irrelevant. Consequently, the appeal of the assessee was allowed, and the appeal of the Revenue was rejected.

This judgment from the Appellate Tribunal CESTAT, Bangalore addressed the issues of eligibility for Cenvat credit on SAD paid through debiting licenses and the non-imposition of a penalty despite finding the credit as ineligible. The Tribunal ruled in favor of the appellant, allowing the Cenvat credit and rejecting the Revenue's appeal, emphasizing the compliance with rules and notifications governing the availment of such credits.