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TMI Blog2022 (9) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 75858/2021 dated 21.12.2021 passed by the Customs Excise and Service Tax, Appellate Tribunal, Kolkata, (tribunal) in Excise Appeal No. 79639 of 2018. The revenue has raised the following substantial questions of law for consideration: * Whether the respondent is eligible to avail Cenvat Credit availed in respect of 1%/2% (concessional rate) Additional Duty of Customs (CVD) paid on imported coal in terms of Notification No. 12/2012-cus dated 17.03.2012 and 12/2013-Cus dated 01.03.2013, in view of restriction for availing Cenvat Credit in terms of the Notification No. 12/2012-CE dated 17.03.2012 (sl. No. 67 and condition no. 25)? * Whether the Learned Tribunal has misdirected itself by allowing the appeal of the respondent without app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal made in the notice by submitting a reply which did not find favour with the adjudicating authority and accordingly the order came to be passed on 10.03.2017 disallowing the CENVAT Credit and order of recovery of the same in terms of the Rule 14 of the said Rules. Aggrieved by such order, the assessee preferred appeal before the Commissioner of CGST and Central Excise (Appeal), Siliguri Commissioner (Appeals). The said appeal was partly allowed by order dated 18.06.2018. However, the reverse of the CENVAT Credit, recovery of interest and penalty was affirmed. Aggrieved by such order, the assessee preferred appeal before the learned Tribunal. The tribunal by the impugned order dated 21.12.2021 has allowed the appeal. Aggrieved by the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in all respects and accordingly all the conditions prevailing on duty of excise is very much applicable to CVD though they are collected under different statutes but are same in respect of their nature and the purpose for levy. Further it is contended that the notifications dated 01.03.2011 and 17.03.2012 read with Rule 3 is applicable to CVD and if any other interpretation is given it will jeopardise the very purpose of imposition of countervailing duty. 6. The learned tribunal while allowing the appeal pointed out that there is no restrictions in the notifications dated 17.03.2012 and 01.03.2013 unlike Serial No. 67 of Central Excise Notification No. 12 of 2012 dated 17.03.2012 in so far as the availment of CENVAT Credit on coal is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means that there are some degree of flexibility or adjustments which do not allow this rated requirements; there has to be some difference between what is equivalent and what is exact. The circular issued by CBEC in Circular No. 41/2013-Cus dated 21.10.2013 is also of relevance to the case on hand. The necessity to issue the circular arose as doubt was raised whether an importer, while availing the "Basic Customs Duty" (BCD) Exemption at 10 % under FTA can simultaneously avail of the concessional countervailing duty (CVD) at 2 % as per notification No. 12/2012-Customs or he has to pay the CVD at 6 %, which is rate of excise duty applicable on Steam Coal when CENVAT facility has not been availed. The issue was clarified on the following ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced rate of 2% CVD on their importation in terms of Section 3 of Customs Tariff Act, 1975 read with Notification issued therein i.e. under Notification No. 12/2012-Cus. Dated 17.03.2013 (and not under Notification No. 1/2011 CE) which was not excluded from the purview of Rule 3 of Cenvat Credit Rules, 2004. It appears that the Cenvat Credit of CVD paid on importer coal (i.e. 2% adv.) under Notification No. 12/2012-Cus. Dated 17.03.2013 is eligible for credit. 9. Identical issue has been decided in favour of the assessee by the tribunal in Hindalco Industries Limited Versus GST, Bhopal 2018 (363) ELT 1085 (Tri.-Del), holding that taking into consideration Notification No. 12/2012-Cus there is no bar for availment of CENVAT Credit in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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