9911796707
TMI Blog2010 (1) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... als are directed against the very same Order-in-Original, we take up these appeals together for disposal, by a common order. 2. The relevant facts that arise for consideration are that the appellant/assesee had availed! taken 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. It was the contention of the 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. Coming to suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned in the various schemes in question. The respective Bills of Entry have been assessed by the concerned customs authorities and only thereafter the imported goods were cleared out of Customs charge. In other words the payment of SAD through debiting the credits earned has been accepted by the customs officer assessing the goods at the port. (c) The Appellants submit that till date neither there has been a Show Cause Notice issued to the Appellants by the Customs authorities alleging short-payment of duty due to debit in DFCE scrip nor the Bill of Entry on which the goods were imported has been challenged by the department by way of filing of an appeal. Consequently, the assessments in the respective bills of entry have attained fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cenvat Credit Rules, 2004. (h) The above decision has again been followed by the Tribunal in the case of Seshasayee Paper and Boards Lt. v. CCE, Salem re ported in 2008 (223) E.L.T. 616 (Tri. - Chennai). (i) In view of the above, the appellants submit that they are entitled to avail credit of SAD, paid by adjusting against the licenses. (j) Without prejudice to the above, the Appellants submit that the excise authorities having control over their factory have no power to question the correctness of payment of SAD by way of debit in DFCE scrip if the Customs authorities have not questioned the said manner of payment. All that the jurisdictional auth9rities in charge of the appellants can do is to question either the correctness of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Export Import Policy, 2002-07 and the Foreign Trade Policy, 2004-09, it would thus be seen that there is a fundamental change in the Policy with regard to the adjustment of duty paid through DEPB/DFCE/Target Plus. (d) In the case of DEPB and Target Plus Scheme, the Notifications as enacted contained the facility of payment of additional duty through debit of the credit earned. (e) In the case of DFCE, Notification No. 53/2003-Cus., dated 1-4-2003 as issued granted exemption to inputs imported under Duty Free entitlement Credit Certificate (DFCE) from payment of Basic Customs Duty and Additional Duty if the duty is debited from the Cenvat earned. It did not have any mention of the entitlement of the importer to avail drawback or Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant by debit through DFCE/DEPB licence is not eligible as a Cenvat credit. He would rely upon the Board's Circular No. 20/2006-Cus. dated 21-7-2006 (relied upon by the adjudicating authority in the Order-in-Original) to submit that only CVD is allowed to be debited on the DFCE scheme and not SAD. As regard Notification No. 54/2003-Cus. as amended, it is his submission that the said Notification clearly indicate that the SAD leviable under subsection (1) of Section 3 of the Customs Tariff Act is only allowed to be debited under DFCE scheme. He would reiterate the findings of the adjudicating authority. 6. We have considered the submissions made by both sides and perused the records. The issue involved in this case is regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the 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. In the absence of any such direction from the Customs auhorities, it does not lie in the hand of the Central Excise authorities to hold that the appellant could not have debited the amount under notification. Any liability of short payment of Customs duty by debiting the DFCE licence, the demand should have to be raised by the appropriate authorities. Having not done so, it has to be held that the appellant has paid the 4% SAD. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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