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TMI Blog2019 (5) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... il benefit of concession rate of duty under Notification No.12/2012-Cus dated 17.03.2012. Though, the appellants are disputing classification as adopted by the Customs but in the meantime, they have paid the differential duty of ₹ 48,73,556/- and availed CENVAT credit of ₹ 24,44,987/- of the CVD part of the differential duty. I find that this is a case of re-assessment of the Bill of Entry and the appellant is entitled to CENVAT credit of duty paid on the imported goods. Further, I find that Rule 9 (1) (b) of CCR are not applicable to the instant case because in the present case CENVAT credit is availed on re-assessment of the Bill of Entry. Further, I find that in the present case, there is no suppression on the part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.2018 and 06.06.2018 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeals of the appellants. The issue involved in both the appeals is identical therefore both the appeals are being disposed of by this common order. Details of both the appeals are given here in below: SI. No. Appeal No. Period of Dispute Amount Involved (in Rs.) Penalty imposed (in Rs.) 1. E/21193/2018 09/2013 24,44,987/- 24,44,987/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The appellant vide his letter dated 04.04.2014 furnished the details of CENVAT credit availed on 30.09.2013 of ₹ 24,44,987/-, the CVD part of the differential duty of ₹ 48,73,556/-. In view of the above, the Department has alleged that the appellant has contravened provisions of Rule 9 (1) (b) and Rule 3 of the CCR, 2004, by availing credit of CVD paid subsequent to the Alert Notice No.03/2013 dated 30.01.2013 issued by DRI, New Delhi. Therefore, a SCN dated 21.08.2014 was issued to the appellant to demand ineligible CENVAT credit of ₹ 24,44,987/- availed consequent to the detection of the offence of misclassification of imported coal and wrong availment of benefit of 12/2012-Cus dated 17.03.2012 by the DRI, New Delhi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the credit availed on the basis of challan or any other similar document is correct as per the Rules and the Act and the provision of supplementary invoice will not be applicable in the present case as there is no such sales transactions between the appellant and any other party. He further submitted that the appellants have been imported South African Origin Steam Coal on High Sea Sale basis since from the inception of the plant i.e., 2004. Since then they have been classifying the same as South African Steam Coal in bulk in the Bill of Entries cleared after paying appropriate duty and after following necessary Customs formalities. The appellants have claimed the benefit of exemption as per S.No.123 of Notification No.12/2012-Cus date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein the Tribunal has held that when additional duty is paid under re-assessment or on being pointed out by the Revenue then the credit of such duty paid will be admissible as CENVAT credit to the appellant under Rule 9 (1) (c) of the CENVAT Credit Rules, 2004. He further submitted that there is no suppression of facts in the present case as the custom authorities have been releasing the goods based on their procedure and all the documents were made available to them. He also submitted that the custom authorities at Port has drawn samples and after analyzing the result of the samples, the Bill of Entry was approved and therefore the same cannot be taken as suppression of facts to evade payment of duty. For this submission, he relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Bill of Entry and the appellant is entitled to CENVAT credit of duty paid on the imported goods. Further, I find that Rule 9 (1) (b) of CCR are not applicable to the instant case because in the present case CENVAT credit is availed on re-assessment of the Bill of Entry. Further, I find that in the present case, there is no suppression on the part of the appellant with intent to evade payment of duty because the appellants have declared all the particulars at the time of availing the Bill of Entry which were considered by the Customs and thereafter the goods were released. Further, I find that in the case of Essar Oil Ltd. (supra), the Tribunal has held that when additional duty is paid under re-assessment or on being pointed out by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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