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TMI Blog2015 (9) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... eking Cenvat Credit thereafter. - Commissioner (Appeals) as well as the Tribunal relied upon a Larger Bench decision of the CESTAT in ESSAR Steel Limited v. Commissioner [2004 (8) TMI 123 - CESTAT, NEW DELHI]. The said decision is not overruled so far by any High Court. But according to the learned counsel for the appellant, the decision of the Larger Bench was watered down to a great extent by this Court in Commissioner of Central Excise v. Spic Limited [2013 (9) TMI 93 - MADRAS HIGH COURT]. - Therefore, after a specific prohibition was introduced under the Scheme from 1.4.2000 onwards, it is not possible for the appellant to claim the benefit in respect of the Bill of Entry of the year 2003. Therefore, the decision in Spic, even if it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods by debiting the DEPB for both customs duty payable under the Customs Act, 1962 and the additional customs duty leviable under Customs Tariff Act, 1975. 5. The Department issued a show cause notice dated 7.10.2003, calling upon the appellant to show cause as to why the Cenvat Credit availed by them should not be recovered under Rule 12 of Cenvat Credit Rules, 2002 read with Section 11-A of the Central Excise Act, 1944. The appellant submitted a reply to the show cause notice. However, by an Order-in- Original passed on 31.3.2005, the Deputy Commissioner of Central Excise followed the decision of a Larger Bench of CESTAT in ESSAR Steel Ltd., v. Commissioner of Central Excise [173 ELT 239] and held that the appellant was not entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Exim Policy, as it was in force at the relevant time and held that Cenvat Credit would not be available for the additional duty of customs discharged using DEPB Scrip. According to the Tribunal, the importers of inputs were given an option under para 4.3.2 of the Exim Policy either to pay the additional customs duty in cash or to discharge liability using DEPB Scrip. Therefore, the Tribunal confirmed the decisions of the Original Authority and the First Appellate Authority, on the basis of the Larger Bench decision of CESTAT in ESSAR Steel Limited. 10. To find answer to the question of law raised in the appeal, it is necessary to have a look at the Notification No.31/97. Under this Notification, issued in exercise of the powers confer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justed as CENVAT Credit or Duty Drawback as per rules framed by the Department of Revenue. In cases, where the additional customs duty is adjusted from DEPB, no benefit of CENVAT/Drawback shall be admissible. 12. It appears that the prescription contained in the last line of para 4.3.5 of Exim Policy was deleted under a Notification bearing No.28, dated 28.1.2004. In any case, it is contended by the learned counsel for the appellant that para 4.3.5 deals with export and it does not deal with a manufacturer making a Domestic Tariff Area clearance. Rule 5 of the Cenvat Credit Rules, 2002 makes it clear that where any inputs are used in the final products which are cleared for export under Tariff or Letter of Undertaking as the case may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd cleared the goods by debiting DEPB, for both customs duty as well as additional customs duty, it is claimed by the respondents that under the relevant Bill of Entry bearing No.45901 dated 25.1.2003, they availed the benefit of exemption Notification No. 45/2002 dated 22.4.2002. The Notification No.34/97 dated 7.4.1997 relates to Exim Policy April 97-March 2002. But the Notification No.45/2002 pertains to Exim Policy April 2002-March 2007. 16. According to the respondents, when the Bill of Entry dated 25.1.2003, which is the relevant document specified in Rule 7 of the Cenvat Credit Rules, 2002, did not indicate payment of any duty, no Cenvat Credit can be availed. Therefore, we do not think that the Tribunal committed any mistake in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k. However, in the absence of any such specific prohibition for the period prior to 2000, considering the provision under Paragraph 7.25 that a holder of DEPB shall have the option to pay additional customs duty if any, in cash, the provision under Paragraph 7.41 could only be read as recognizing payment in cash too available for adjustment under Modvat Scheme. Thus, in the absence of any restrictive wording, we do not find any justification to deny the benefit of Modvat credit available to a case covered by the credit taken under the Passbook Scheme. 21. Therefore, after a specific prohibition was introduced under the Scheme from 1.4.2000 onwards, it is not possible for the appellant to claim the benefit in respect of the Bill of Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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