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TMI Blog2017 (11) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is deducted/adjusted in the DEPB passbook. The appellant s case is during the period in question September 2004 to November 2004, they are eligible to avail the cenvat credit while Revenue is of the view that since the DEPB scripts which were utilized by the appellant were issued as per Exim Policy 2002-07 they are not eligible to avail the cenvat credit. It is undisputed that the appellant had discharged the countervailing duty by debit in the DEPB scrips and consumed the goods in the manufacturing activity. 4. I find that the issue is no more res integra as Hon'ble High Court of Punjab & Haryana in the case of Neel Kanth Rubber Mills was considering identical issue and their Lordship held as under: "[Order]. - The revenue has direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of additional duty leviable under Section 3 of the Customs Tariff Act (hereinafter to be referred as the Act ) against the amount debited in DEPB. It will not be out of place to mention here that the assessee has stoutly denied all other allegations contained in the show cause notice (Annexure A1), pleaded that they have legally availed the Cenvat credit and prayed for withdrawal of the said notice. 5. The explanation put forth by the assessee did not find favour and the Adjudicating Authority disallowed the Cenvat credit, ordered its recovery alongwith interest and imposed a penalty of Rs. 1 lac, vide order dated 21-2-2006 (Annexure A2). The perusal of the record would reveal that the Assistant Commissioner dropped the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the previous policy and during that period, the Cenvat credit was not admissible in CVD paid, otherwise than in cash, so, the assessee is not entitled to avail the Cenvat credit, is not only devoid of merit but misplaced as well, because the EXIM Policy amended, vide Notification dated 28-1-2004 and Notification No. 96 dated 17-9-2004, postulate that an importer shall be entitled to avail the Cenvat credit of additional duty leviable under Section 3 of the Act against the amount debited in DEPB. There is no such condition in the indicated notifications that the debits made in DEPB, the licenses issued under the Foreign Trade Policy only would be eligible for credit and the debits made in DEPB issued under the previous policy will no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ches, fuses, etc. chargeable to central excise duty. The period of disputes in these appeals before the CESTAT are from 22nd April, 2004 to 29th April, 2005 and 23rd December, 2005 to 7th January, 2006. 3. The Respondents imported raw materials by availing exemption under Notification No. 96/2004-Cus., dated 17th September, 2004. The customs duty as well as additional customs duty were paid using Duty Entitlement Pass Book (DEPB) scrips issued in terms of the 2002-07 Foreign Trade Policy (FTP). The Respondents availed of Cenvat credit for the additional customs duty paid through DEPB scrips. In terms of the Notification No. 34/97-Customs, dated 7th April, 1997 goods specified in Schedule I to the Customs Tariff Act, 1975 (CTA) imported wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible for credit. 7. Ms. Sonia Sharma, learned counsel for the Appellant states, on instructions, that to the best of the knowledge of the Appellant, no appeal has been filed as of date 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 2002-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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