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TMI Blog2017 (12) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... at in terms of Para 4.3.5 of the Exim Policy the cenvat credit of CVD paid through DEPB is not eligible for credit. The adjudicating authority under Order dt. 23.02.2006 allowed the cenvat credit holding that the restriction given in Para 4.3.5 of the Exim Policy was removed w.e.f 28.01.2004 and it provided availment of credit of CVD paid through DEPB. That the restricted clause for the period before 28.01.2004 is inconsistent with the modvat scheme. Aggrieved by the adjudication order, in as much as it pertained to credit availment for the period before 28.01.2004, the revenue filed appeal before the Commissioner (Appeals) contending that the amendment made in policy w.e.f 28.01.2004 is prospective in nature and not retrospective. The Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod is not invokable. He relies upon the judgment in case of Commr. Vs. Mtz Polyfilms - 2010 (256) ELT 539 (GUJ.) and UOI Vs. BALCO - 2016 (344) ELT 1153 to state that extended period cannot be invoked. 3. Shri H.M. Dixit, Ld. Asstt. Commissioner (AR) appearing for the Revenue reiterates the findings in the impugned order. 4. We have carefully considered the submissions made by both the sides. We find that out of the nine bills of entry which are subject matter of this appeal, only two bills of entry pertain to period prior to 28.01.2004 and remaining are after said period. The show cause notice proposed to disallow credit merely on the basis of analysis of para 4.3.5 which denied the credit. However we find that once the para 4.3.5 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter considering the Tribunal's Larger Bench order in case of Essar Steels held that the Appellant is eligible for the cenvat credit. Hence the ratio of ESSAR Steels supra is not applicable to the present case. The Tribunal in case of M/s Havells India Ltd., Vs. CCE, New Delhi - 2015 TIOL 1349 CESTAT DEL while deciding the identical issue also held that the Larger bench judgment of Essar Steels does not stands concurred with the judgment of Hon ble High Court of Madras in SPIC case supra. We therefore hold that in case of bills of entry post 28.01.2004 the cenvat credit is available to the Appellant on merit. In case of Bills of entry of period prior to 28.01.2004 we find that the show cause notice does not brings out any malafide inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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