9911796707
TMI Blog2017 (1) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit. Consequently, the Show Cause Notice dated 31.1.2008, which has been issued covering the period March, 2003 to December, 2005 is to be held as time barred. In this view of the matter, no part of the demand will survive. The other ground on which the demand has been upheld in the impugned order is that some of the credits have been available on the basis of DEPB scrips issued under the earlier Foreign Trade Policy (2002-2007). In the light of the circular issued by the Board, the Cenvat credit has been denied. This issue has since been settled in favor of the appellants by the Hon'ble High Court, Delhi. In the case of Commissioner of Delhi Vs. Havells India Ltd. [2015 (10) TMI 1553 - DELHI HIGH COURT], it was held that there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the DEPB before the authority and thus had suppressed the facts from department. Therefore, a Show Cause Notice dated 31.01.2008 was issued against the appellant asking for disallowance and recovery of credit amounting to ₹ 45,26,087/- under Rule 12 and 14 of Cenvat credit Rules, 2004 read with Section 11A(1) of the Act. Recovery of interest was also proposed under Rule 12 and 14 of Cenvat Credit Rules, 2004 read with Section 11AB of Central Excise Act. In addition to this penalties were also proposed under Rule 13 and 15 of Cenvat Credit Rules, 2004 read with Section 11 AC of the Act. The said Show Cause Notice was decided vide the impugned Order-In-Original disallowing the credit of ₹ 45,26,087/- and ordering for its recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our by the Hon'ble High Court of Delhi in the case of Commissioner of Central Excise Vs. Havells India Ltd. reported in 2015-TIOL-2399-HC-DEL-CUS. 4. The Ld. DR, on the other hand supports the orders passed by the authorities below. He submits that CBEC has issued a Circular No. 59/2004-Cus dated 21.10.2004 in which it has been clarified that the facility of Cenvat credit, only be available in respect of DEPB scrips issued under the new Foreign Trade Policy (2004-09). 5. Foreign Trade Policy, 2002-2007 have a specific condition stipulating that the Additional Customs duty (CVD) paid by making use of DEPB scrips shall not be eligible for the benefit of Cenvat credit in the hands of the importer. However, such condition was deleted, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be decided against the assessee only by the decision of the larger bench (Supra), it is concluded that the issue was disputed. Under the circumstances, it cannot be alleged that the appellant indulged in suppression of facts with deliberate intent to avail ineligible Cenvat credit. Consequently, the Show Cause Notice dated 31.1.2008, which has been issued covering the period March, 2003 to December, 2005 is to be held as time barred. In this view of the matter, no part of the demand will survive. 7. The other ground on which the demand has been upheld in the impugned order is that some of the credits have been available on the basis of DEPB scrips issued under the earlier Foreign Trade Policy (2002-2007). In the light of the circular is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te against the aforementioned order of the Punjab and Haryana High Court in Commissioner of Central Excise v. M/s. Neel Kanth Rubber Mills (supra) which decides the issue in favour of the assessee and against the Department.
8. The Court finds that the said decision indeed covers the issue against the Department on all fours. The appellant has not been to show any notification by which the benefit of CENVAT credit has been expressly denied where the payment of Customs duty or additional customs duty is made using DEPB scrips issued in terms of the FTP 2002-07. "
8. In view of the above discussions, the impugned order is set aside and the appeal allowed.
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