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2019 (10) TMI 635 - AT - Central ExciseAdjustment of CENVAT Credit - Duty Free Credit Entitlement (DFCE) certificates - N/N. 53/2003-Cus dated 01.04.2003 - It is the case of the department that the assessee could adjust Cenvat Credit only w.e.f. 17.11.2005 when the amendment was made to the aforesaid notification no. 53/2003 vide notification no. 97/2005-cus dated 17.11.2005 - HELD THAT - The issue decided in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX VERSUS LUPIN INDUSTRIES LTD 2017 (12) TMI 1021 - CESTAT MUMBAI where it was held that Respondent is an exporter and is thereby entitled to a refund of taxes/duties on all inputs and it is the superfluous activity of collecting the additional duty for subsequent refund that would be the consequence of the proposition made on behalf of Revenue. It is noted that in the present case the authorities have not disputed the customs exemption claimed by the assessee and therefore it is not open to the authorities to dispute the availment of cenvat credit which is otherwise available in terms of the CENVAT Credit Rules 2004 as also clarified vide circular dated 13.10.2006. In a similar case where the cenvat credit of SAD amount credit was sought to be denied to the assessee which was paid by the assessee through DFCE licence the Tribunal in TECUMSEH PRODUCTS INDIA PVT. LTD. VERSUS COMMR. OF C. EX. HYDERABAD 2010 (1) TMI 587 - CESTAT BANGALORE has held that the assessee was legally eligible for cenvat credit. The assessee is eligible for credit of the countervailing duty paid through debit in the DFCE certificates even prior to 17.11.2005 - Appeal allowed - decided in favor of assessee.
Issues Involved:
1. Eligibility for Cenvat Credit prior to 17.11.2005. 2. Compliance with Notification No. 53/2003-Cus and subsequent amendments. 3. Requirement to specify supporting manufacturers on DFCE certificates. Issue-wise Detailed Analysis: 1. Eligibility for Cenvat Credit prior to 17.11.2005: The core issue is whether the assessee is entitled to Cenvat Credit for the period before the amendment on 17.11.2005. The Tribunal referenced its own decision in the assessee’s case (Final Order No. 77250/2018) and noted that the DFCE scheme introduced by the Central Government allowed Cenvat Credit for additional customs duty paid through DFCE certificates. The Tribunal observed that the relevant exim policy, which has the force of law, provided for such credit. The Tribunal emphasized that the appellant acted based on the notifications and should not be penalized for the delay in issuing the customs notification. The Tribunal concluded that the notification dated 17.11.2005 is clarificatory and should apply retrospectively, thus allowing the benefit of credit for the period prior to 17.11.2005. 2. Compliance with Notification No. 53/2003-Cus and subsequent amendments: The Revenue argued that the assessee violated the conditions of Notification No. 53/2003 by availing credit before the amendment on 17.11.2005. The Tribunal referred to the amended notification and noted that the exemption from customs duty would be available if all conditions were met. Since the authorities did not dispute the customs exemption claimed by the assessee, they could not dispute the availment of Cenvat Credit. The Tribunal cited similar cases, such as CCE Mumbai vs. Lupin Industries Ltd, where it was held that the amendment and subsequent circulars rendered the benefits retrospective. The Tribunal reiterated that procedural notifications should not negate substantive entitlements like Cenvat Credit. 3. Requirement to specify supporting manufacturers on DFCE certificates: The Revenue contended that the assessee did not specify the names and addresses of supporting manufacturers on the DFCE certificates. The Tribunal found no merit in this argument, noting that the assessee was a registered manufacturer and thus not required to declare supporting manufacturers. The Tribunal supported this view by referring to the Ld. Commissioner's observations that the assessee, being a registered manufacturer, was entitled to get goods manufactured by job workers under Notification No. 214/86-CE. The Tribunal thus rejected the Revenue's appeal on this ground. Conclusion: The Tribunal allowed the assessee's appeal, granting eligibility for Cenvat Credit prior to 17.11.2005, and rejected the Revenue's appeal, affirming that the assessee complied with the relevant notifications and was not required to declare supporting manufacturers. The decision emphasized the retrospective application of clarificatory notifications and the procedural nature of the requirements under the customs notifications. The order was pronounced in the open court on 16 October 2019.
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