TMI Blog2022 (7) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... 1% or 2% CVD, as the case may be, paid under Notification No. 12/2012-Cus. Otherwise also, the issue involved in these appeals is no more res integra and is covered in favour of assessee in view of various decisions of this Tribunal on the identical issue. In the case of SHREE ARIHANT TRADELINKS INDIA PRIVATE LIMITED AND MAHA SHAKTI COKE VERSUS C.C.E., KUTCH (GANDHIDHAM) [ 2021 (12) TMI 581 - CESTAT AHMEDABAD] it was held that the appellants/assessee therein are eligible for Cenvat credit in respect of 2% CVD paid under Notification No. 12/2012-Cus. Since a consistent view has been taken by this Tribunal in favour of assessee on this issue from time to time, there are no reason to take a contrary view, and therefore there are no merits in the appeals filed by Revenue and the same are hereby dismissed. - Excise Appeal No. 51032 of 2019, Excise Appeal No. 52699 of 2019, Excise Appeal No. 52743 of 2019, Excise Appeal No. 52802 of 2019 - FINAL ORDER NO. 50630-50633 / 2022 - Dated:- 21-7-2022 - MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) AND MR. AJAY SHARMA, MEMBER (JUDICIAL) Mr. Rakesh Agarwal, Authorised Representative for the Appellant Mr. Saurabh Suman Sinha Ms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional duty of Customs paid by them on import of steam coal amounting to Rs. 1,97,57,279/- during the period October, 2012 to June 2017 which otherwise was not admissible to them under the relevant provisions of Cenvat Credit Rules, 2004 r/w Notification No. 12/2012-CE dated 17/03/2012 and therefore a show-cause notice dated 03/11/2012 was issued to the assessee for duty demand alongwith interest and penalty which was upheld by the Adjudicating Authority who ordered for recovery of Cenvat credit alongwith interest and penalty. iii) E/52743/2019 - Here also the assessee are engaged in manufacture of cement and during the scrutiny of their documents, it was observed that they have availed Cenvat credit of 1%/2% of additional duty of Customs (CVD) paid by them on the imported coal during the period 2012-2013 to 2015-2016 which according to Revenue is in contravention of Rule 3 of Cenvat Credit Rules, 2004. Accordingly, a show-cause notice dated 17/10/2017 was issued to the Appellants denying the credit and the same was upheld by the Adjudicating Authority by disallowing the credit and ordering for recovery of the same alongwith interest and penalty. iv) E/52802/2019 - In this A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailed CENVAT credit of the additional duty of customs so paid under rule 3(1)(vii) of the CENVAT Credit Rules. This availment of CENVAT credit has been denied to them for the reason that the additional duty of customs paid @ 2% was not the duty of excise as specified in the Excise Tariff Act and so CENVAT credit of the additional duty of customs paid under the Customs Notification dated March 17, 2012 have been wrongly availed. xxx xxx xxx 12. It would be appropriate to reproduce rule 3 of the CENVAT Credit Rules and it is as follows: RULE 3. CENVAT credit - (1) A manufacturer or producer of final products or a provider of output service shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of - (i) The duty of excise specified in the First Schedule to the Excise Tariff Act, leviable under the Excise Act: Provided that CENVAT credit of such duty of excise shall not be allowed to be taken when paid on any goods- (a) in respect of which the benefit of an exemption under Notification No. 1/2011-C.E., dated the 1st March, 2011 is availed; or (b) specified in serial numbers 67 and 128 in respect of which the benefit of an exemption unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty of customs by availing the benefit under serial number 122A/123 of the Customs Notification dated March 17, 2012. It is because of this misreading of rule 3(1) of the CENVAT Credit Rules that led the Commissioner to commit an error. 15. The Regional Advisory Committee of Hyderabad Zone, in its meeting held on February 9, 2015 considered this very issue at point No. 1 and concluded that CENVAT credit of additional duty of customs paid on imported goods under Customs Notification dated March 17, 2013 (and not under Central Excise Notification) is available for credit. The relevant portion of the minutes is reproduced below: MINUTES OF THE MEETING OF THE REGIONAL ADVISORY COMMITTEE, HYDERABAD ZONE HELD ON FEBRUARY 09, 2015. Point No. 1 Credit on imported coal:- Many manufactures are importing steam coal on payment of duties. As per Customs Notification No. 12/2012-Cus. They are availing concessional CVD @ 2%. Audit is of the view that since CVD has been paid @ 2% on imported coal, the credit under Cenvat Credit Rules, is not available. Audit is taking a view that CVD in lieu of Excise duty and if 2% duty has been paid on imports the credit is not admissible beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that circumstances, the impugned order is set aside. 17. This decision of the Tribunal was subsequently followed by the Tribunal in Jaypee Sidhi Cement Plant and the relevant portion of the decision is reproduced below : 4 . It is submitted on behalf of the appellant that adjudicating authority below has wrongly made applicable the Notification No. 12/2012-C.E., dated 17-3-2012 to the facts and circumstances on a wrong presumption that the levy of CVD in dispute is since equal to the Excise duty leviable on the similar goods and manufactured in India, that the benefit of Customs Notification No. 12/12 has wrongly been denied vide Order. Learned Counsel has relied upon the decision of this Tribunal in the case of M/s. Hindalco Industries Ltd. vs. GST, Bhopal as was pronounced in Appeal No. E/50179/2018-SM vide Final Order No. 50876/2018, dated 8-3-2018 [2018 (363) E.L.T. 1085 (Tri.-Del.)]. Reliance has also been placed on another decision of the Tribunal in the case of Asahi Songwon Colors Ltd. v. CCE ST, Vadodara Appeal No. E/10635/2017-SM vide Final Order No. A/11585/2018 (Ahmd.), dated 9-7-2018. Therefore, the order in challenge is prayed to be set aside and appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coal and not in respect of imported coal. The import whereof is allowed to have exempted rate of CVD vide Customs Notification No. 12/2012-Cus. 9 . In view of the entire above discussion, we are of the firm opinion that the adjudicating authority has committed a legal error while denying the benefit of reduced CVD on imported coal while placing reliance upon the Excise notification for manufacture of coal. (emphasis supplied) 18. The same view was taken by the Tribunal in Asahi SongwonColors and the relevant paragraph is reproduced below: From the above Rule, it is observed that even if any duty is paid by availing exemption Notification No. 12.2012-CE dated 17.03.2012, the same will not be available as Cenvat credit for the user of the goods. In the present case, admittedly, the appellant have imported Coal and CVD of 2% is leviable in terms of Customs Notification No. 12/2012-Cus. There is no restriction provided in Rule 3 as regards duty paid under Customs notification. This restriction is applicable only in case of indigenous goods on which the excise duty @ 2% was paid availing Notification No. 12/2012-CE, which is not a case here. Therefore, the appellant is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such duty of excise . In the present case, what the assessee has paid was the countervailing duty. The same may have been computed in terms of excise duty payable on local manufacturers, nevertheless, the same cannot be treated as duty of excise perse. He however candidly a greed that facility for getting CENVAT credit in the case of the present assessee flows from rule 3 of the Rules. As per subrule (1) of rule 3, a manufacturer or producer of a final product or a provider of output service would be allowed to take the CENVAT credit on the duty of excise specified in the First Schedule to the Excise Tariff Act, leviable under the Excise Act. Sub rule (1) rule 3 which gives the concession of availment of CENVAT credit of the duty paid, also uses the same expression duty of excise as is used in the proviso which restricts or limits the right of availment of such facility under certain circumstances. The expression duty of excise used in clause (i) of subrule (1) of rule 3 and the above noted proviso to the said rule, must receive same interpretation. The term duty of excise cannot have different connotations for the purpose of subrule (1) of rule 3 and for the purpose of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 12/2012-Cus. The relevant paragraphs of the said decision is extracted as follows:- xxx xxxx xxx 5. We have carefully considered the submissions made by both the sides and perused the record. We find that appellant have availed Cenvat credit in respect of 2% CVD paid as per Notification No. 12/2012-Cus. Specific bar was provided under Rule 3(1)(i)(a) and (b) for availing Cenvat credit in respect of goods exempted from payment of excise duty under Notification No. 1/2011-CE and 12/2012-CE. However, there is no bar provided in respect of CVD paid under Customs Notification No. 12/2012-Cus. For this reason itself, the Cenvat credit availed by the appellant in respect of CVD cannot be denied. We find that Revenue has disallowed Cenvat credit to the appellants in respect of CVD paid on imported Coal at the rate of 2% in terms of Notification No. 12/2012-Cus dated 17.03.2012. Only on the ground that the appellant have not paid CVD equivalent to the excise duty leviable on the Coal specified under clauses (i), (ii), (iii), (iv), (v), (vi) and (via) and applied clause (vii) of Rule 3 of Cenvat Credit Rules. The Revenue‟s contention is incorrect that as per clause (vii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, whenever CVD is paid, it flows from the Central Excise Tariff Act and not from the Customs Tariff Act and is not as per the duty specified in the Customs Tariff Act. Therefore, the entire basis of the interpretation made by the Adjudicating Authority regarding levy of CVD is erroneous and on that basis, the case of the department does not sustain. A very identical issue has come up in various cases before this Tribunal and this Tribunal has taken consistent view that Cenvat credit in respect of 2% concessional CVD paid on Coal is admissible. 7. The above decision of the Tribunal has considered various decisions given by the different benches and also distinguished the decisions relied upon by the Revenue and concluded that the appellant is entitled for Cenvat credit in respect of 2% CVD paid under Notification No. 12/2012-Cus. 8. On the issue of limitation, we find that the issue involved is purely of interpretation of Cenvat Credit Rules, levy of CVD in terms of Customs Tariff Act. It is also the fact that on identical issue many cases were made out by the department across the country in respect of different assessees which clearly shows that the issue involved is of i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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