9911796707
TMI Blog2008 (7) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of Notification No. 2/95-C.E. dated 4 January 1995. The respondents had taken Cenvat credit equivalent to the Additional duty leviable on the inputs, which was found to be incorrect. Department took a stand that since the supplier of inputs had paid 50% of the total customs duties on the goods cleared to the respondents, the respondents were eligible to take the Cenvat credit equal to half of the actual additional duty paid by the supplier of the inputs. A show cause notice was issued requiring the respondents to show cause as to why excess credit of Rs. 1,46,511/- should not be recovered from them, which culminated in confirmation of the demand of the said amount with equivalent amount as penalty. In appeal proceedings, the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the supplier was liable to pay only 50 per cent of the total customs duty payable. The Commissioner (Appeals) has applied the decision of the Larger Bench of the Tribunal and the learned SDR on behalf of the Revenue also could not confirm that the invoices under dispute contained breakup of different components of the duties. 4. The point for determination in this case is the amount of Cenvat credit available in terms of Rule 3(6)(a) of Cenvat Credit Rules, 2001 when the goods (inputs) are procured from 100% Export-Oriented Unit. Even though the quantum of duty leviable on the goods manufactured by 100% Export-Oriented Unit is to be determined on the basis of the duties of customs on like goods produced or manufactured outside India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the time being in force on the like goods produced or manufactured outside India, if imported into India provided that the amount of duty payable shall not be less than the duty of excise leviable on like goods produced or manufactured by the units in Domestic Tariff Area read with any relevant notification. It is, thus apparant that notification No. 2/95 provides a minimum limit of the rate of duty which has to be paid by the 100% E.O.U. while clearing the goods to DTA and this limit is provided by the duty of excise leviable on like good manufactured outside 100% E.O.U. However, if the aggregate of duty customs leviable on goods cleared by 100% E.O.U. is more than the duty of excise leviable on like goods, a 100% E.O.U. has to pay more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods cleared to any place in India is excise duty, the question of dissecting the said duty into different components of basic customs duty, auxilliary duty, additional duty of Customs or any other customs duty does not arise. The proforma of AR-1A on which the reliance was placed by the learned D.R., cannot change the legal position that the duty levied on 100% E.O.U. is a duty of excise and not customs duty. 17. The question then arises is how to determine the quantum of Modvat credit available to the manufacturer in respect of the goods procured from a 100% E.O.U. The only method, which, we feel, is available to the Revenue is as suggested by the learned Counsel, i.e. ascertain firstly the additional duty of customs leviable on li ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
