2015 (1) TMI 169 - AT - Central Excise

Denial of CENVAT Credit - credit of additional duty of Customs - Non proper document - benefit of exemption Notification No. 102/2007-Cus. - Refund of additional duty of Customs - Held that - appellate authority have observed that there is no evidence to show that the importer has not claimed the refund of Additional Duty of Customs. The appellant contention is that the period of import is from January to March, 2007 whereas Notification No. 102/2007-Customs was issued on 14-9-2007 the said notification is prospective in nature and would not be applicable to the period prior to the same. This stands clarified by the Board vide their Circular No. 102/2007-Cus., dated 14-9-2007. It stand held that only those cases where 4% CVD was paid on or subsequent to 14-9-2007, will qualify for refunds under this scheme subject to fulfilment of prescribed condition. - notification was not in existence on the relevant point of time I also find that the said notification was allowing refund of CVD, subject to fulfilment of certain conditions. One of the condition was that the sale invoices would bear an endorsement that the same are not cenvatable. There is no such endorsement on the invoices. Importer of the raw material would not have claimed the refund of the Additional Duty of Customs paid by him. As such the same would be available as Cenvat credit to the appellant. Accordingly, the impugned orders are set aside - Decided in favour of assesse.

Summary

Issues: Denial of Cenvat credit on additional duty of Customs due to improper documents and importer's eligibility for exemption Notification No. 102/2007-Cus.

In this case, the appellants, engaged in manufacturing S.S. Billets and Flats, availed Cenvat credit of additional duty of Customs during February to March 2007. Proceedings were initiated against them based on audit objection, leading to denial of credit and imposition of a penalty. The denial was primarily due to improper documents and the importer's alleged eligibility for exemption under Notification No. 102/2007-Cus. The Commissioner (Appeals) ruled in favor of the assessee regarding document impropriety but upheld the denial of credit based on the importer's alleged benefit under the said notification.

The appellate authority noted the absence of evidence showing that the importer did not claim the refund of Additional Duty of Customs. The appellant argued that the notification in question was issued after the import period, making it inapplicable retrospectively. The Board's Circular clarified the prospective nature of the notification, stating that only cases with 4% CVD paid on or after the notification date would qualify for refunds under specific conditions. Moreover, the notification required specific conditions to be fulfilled, such as invoices bearing an endorsement indicating non-cenvatable status, which was missing in this case.

Ultimately, the absence of the notification during the relevant import period and the lack of required endorsements on the invoices indicated that the importer did not claim the refund of Additional Duty of Customs. Consequently, the Cenvat credit was deemed available to the appellant. The impugned orders were set aside, and the appeal was allowed with consequential relief granted to the appellant.