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TMI Blog2023 (4) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellant has given a chart on page 90 and 91 as Exhibit 'G'. It has been specifically claimed in respect ofmany entries that benefit of Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003 has not been availed. From the above it is apparent that the observation of Commissioner in the impugned order that duty has invariably been paid under Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003 is prima facie incorrect. The matter needs to be reconsidered by the original adjudicating authority by examining all invoices individually. The provisions of Rule 3(7)(a) of Cenvat Credit Rules would be applicable only in cases where the duty has been paid taking benefit of Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003. Further it is noticed that Tribunal vide order No. 88018 of 2016-SMB dated 22.02.2010 in the appellant's own case has held that the BCD mentioned in the said formula refers to the BCD leviable on the like goods if imported into India. The ratio of the said decision needs to be applied for deciding the cases where the invoices clearly indicate that duty has been paid availing benefit of Serial No. 2 Notification No. 23/2003-CE dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reached that all invoices were received availing Serial No. 2 Notification No. 23/2003-CE dated 31/03/2003. 2.3 He further argued that while calculating the excess CENVAT credit by the formula given in rule 3(7)(a) i.e. X multiplied by ((1+BCD/400) multiplied by {CVD/100)} where X denotes assessable value and BCD and CVD denotes ad valorem rates, Dept has taken a BCD rate as rate as shown on invoice i.e. concessional rate of duty as per Notification 23/2003 CE, viz 1.875%/3.75% as the case may be, whereas BCD rate should be taken as tariff rate. Therefore demand raised is based on wrong interpretation of rule 3(7)(a). He pointed out that Appellant recalculated the CENVAT credit as per formula given in rule 3(7)(a) and in some cases they found excess availment of CENVAT credit of Rs.25,854/- which was reversed by them immediately vide Entry No.745 dated 06.10.2020 and intimated to Range Superintendent vide letter dated 07.10.2010. If BCD rate is taken as 7.5% then CENVAT credit eligible amount arrives at equal to CVD portion only of which Appellant has taken the credit. He pointed out that Ld. Commissioner in his order wrongly stated that, Appellant contending as all invoices rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), read with any other notification in force was reduced by 50%, and (b) no additional duty of customs was leviable under sub-section (5) of section 3 of the said Customs Tariff Act: Provided that while calculating the aggregate of customs duties, additional duty of customs leviable under sub-section (5) of section 3 of the said Customs Tariff Act shall be included if the goods. cleared into Domestic Tariff Area are exempt from payment of sales tax or value added tax. Illustration: Assuming product X has the value Rs. 100/- under section 14 of the Customs Act, 1962, and for the purposes of this illustration, is chargeable to basic customs duty of 10% ad valorem and additional duty of 20% ad valorem only, then the computation of duty required to be paid would be as follows: Basic Customs duty but for this exemption= Rs. 10/- Basic Customs because of this exemption= Rs. 5/- Value for the purposes of calculation of additional duty = Rs. 100/- Rs. 5/-= Rs 105/- Additional duty = 20% of Rs. 105/-= Rs * 0.21 /- . Total duty payable after this exemption= Rs. 5/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Act read with serial number 2 of the Notification No. 23/2003-Central Excise, dated 31st March, 2003 [G.S.R. 266(E), dated the 31st March, 2003]; and (B) the Education Cess leviable under section 91 read with section 93 of the Finance (No. 2) Act, 2004 and the Secondary and Higher Education Cess leviable under section 136 read with section 138 of the Finance Act, 2007, on the excise duty referred to in (A), shall be the aggregate of (I) that portion of excise duty referred to in (A), as is equivalent to (i) the additional duty leviable under sub-section (1) of section 3 of the Customs Tariff Act, which is equal to the duty of excise under clause (a) of sub-section (1) of section 3 of the Excise Act; (ii) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act; and (II) the Education Cess and the Secondary and Higher Education Cess referred to in (B).] From the above, it is seen that Rule 3(7)(a) of Cenvat Credit Rules applies only the duty has been paid at the concessional rate prescribed in Serial No. 2 of Notification No. 23/2003-CE dated 31/03/2003. The appellant has submitted a significant number inv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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