2008 (11) TMI 169

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..... ces - It is an additional facility in the form of reimbursement of terminal excise duty and the general provisions of Cenvat Credit Rules are neither attracted nor applicable for the goods specified under Notification No. 22/03-C.E. dated 31-03-2003. In the appellant’s case, CT-3 were issued in part for procurement of HSD Oil for generation of electricity for captive consumption, as such, Cenvat credit is not deniable to the appellant subsequent to withdrawal of warehousing facility
Ms. Jyoti Balasundaram, Vice-President Shri S. Gautam, DR, for the Appellant. Shri Mohan Lal, Advocate, for the Respondent. [Order].- The miscellaneous application filed by the Revenue for taking on record the Review Order passed by the Committee of Commis .....

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..... the scheme to High Speed Diesel Oil. The benefit of credit cannot be extended only because HSD Oil has been recognized as an input for the limited purpose of duty free import by 100% EOU and that DGFT Policy Circular No. 37(RE-2005)/2004-2009 dated 5-12-2005 is not binding on Customs authorities. 4. The Commissioner (Appeals) has extended the benefit of credit not only on the basis of DGFT Policy Circular, but also on the basis of Notification No. 22/2003-C.E., dated 31-3-2003 and 18/2004-C.E., dated 6-9-2004. The findings of the Commissioner (Appeals) are produced herein below: "I have gone through the above circular dated 5-12-05 of the DGFT which is in respect of reimbursement of excise duty paid on fuels procured from depots of domest .....

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..... bove circular have clearly referred FUEL as "Furnace Oil and High Speed Diesel". In the appellant's case, CT-3 were issued in part for procurement of HSD Oil for generation of electricity for captive consumption, as such, Cenvat credit is not deniable to the appellant subsequent to withdrawal of warehousing facility and I hold it accordingly. It is settled law that when demand is not maintainable, penalty cannot be imposed." 5. There is no challenge in the appeal of the Revenue to the findings based on the two notifications, above mentioned. I have gone through the relevant notifications and find that the subject-provision has been made for 100% EOU and FUEL (HSD). Since the respondents are 100% EOU, the notifications entitle them to take .....

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