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TMI Blog2016 (2) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... in one of the refunds, refund was allowed in respect of the part of SAD payment made in cash. The matter was agitated by M/s Birla Furukawa Fiber Optics Ltd. before the Commissioner (Appeals), who allowed their appeal on the following grounds: - "It is not doubted that the appellant should have taken care at the time of payment of duty to ensure that the repeated Circulars of the Board are followed and thus they could have avoided the litigation they are facing now. Notwithstanding that the substantial benefit should not be denied for procedural infraction and for other reasons discussed above. Hence, the adjudicating authority should have allowed refund by way of re-credit. In fact, I am also of the view that such rigors (i.e. denial of re-credit) should not be applied to cases where duty was paid prior to Circular No. 18/2013-Cus dated 29.4.2013 where para 8 of Boards Circular No. 27/2010-Cus dated 13.8.2010 has been reiterated whereby further leeway was given to the importers. However, I also hold that the position remains limited to 'granting of re-credit', and not to utilization of such credit. In other words, once re-credit is given, it's unilization shall be governed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs would issue a consolidated certificate showing details of refunds allowed through DEPB re-credit, based on which licensing authority would provide necessary re-credit. Thereafter, Board issued Circular No. 27/2010-Cus dated 13.08.2010 which prescribed that such re-credited DEPB scrips would be allowed for utilization by way of filing manual Bills of Entry for making payment of only BCD and CVD and not 4% SAD so as to avoid cascading effect. This circular also specified the time limit for such utilization of re-credited scrips upto 30.12.2010. Subsequently, Circulars Nos. 11/2011-Cus dated 24.11.2011, 30/2011-Cus dated 19.07.2011, 02/2012-Cus dated 16.01.2010, 10/2010-Cus dated 29.03.2010 and Circular No. 18/2010-Cus dated 29.04.2013 were issued periodically under which the utilization period of re-credited scrips were extended finally upto 30.09.2013. 5.4 I have also noticed that para-8 of Circular 27/2010 (supra) states that the Board is of the view that in the interest of ensuring expeditious grant of refund of 4% CVD in cash, the importer may be advised to make the initial payment of 4% CVD in cash. Thereafter, Board has reiterated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. In this regard, I have also examined the amended paragraph 2.13.2A of the Handbook of Procedures (Vol. 1), 2009-14 vide Public Notice No. 06 (RE 2013)/2009-2014 dated 18.04.2013, (cited in appeal memo) which are as under: "(i) Only for the purpose of utilization of re-credit of 4% Special Additional Duty (SAD) of Customs, the freely transferable duty credit scrips (including DEPB), shall be deemed to have been revalidated till 30.09.2013 No further endorsement by the respective RA on such scrips shall be required. (ii) If the consolidated certificate (Credit Note) has already been issued by Customs or gets issued by 30.06.2013, then the amount (4% SAD) indicated in the consolidated certificate by Customs shall be deemed to have been re-credited in the scrips in such cases, without any further reference to any RA of DGFT". 5.6 Analysis of the above provision of Public Notice reveals that first part only states about utilization, i.e. that for the purpose of utilization of re-credit of 4% Special Additional Duty (SAD) of Customs, the freely transferable duty credit scrips (including FMS), shall be deemed to have been revalidated till 30.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tilize the re-credit given by the DGFT in respect of DEPB scrips in respect of EDI Bills. Therefore this instruction appears to have been given. Therefore the only question that has arisen in this case as to whether the credit should be allowed on the live scrip or even on the expired scrip, credit can be allowed is answered by the Board itself though indirectly. Under these circumstances, the impugned order is set aside and the matter is remanded to original authority who shall allow re-credit on each of the scrip without looking into whether DEPB scrip has expired or not expired and thereafter it is left to the assessee/importer to go to the DGFT and get the credit and take further course of action as they deem fit. 6. Learned Counsel for the respondent relied on the decision of the Tribunal in the case of M.B. Enterprise - 2015 (317) ELT 296 (Tri-Ahmd). In para 4 of the said order, the Tribunal has observed as follows: - 4. Heard both sides and perused the case records. The issue involved in these appeals/cross objections is whether sanctioning of 4% of SAD refunds by way of re-credit in the respective licenses after 30-6-2013 was proper or not. It is observed from the case r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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