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TMI Blog2023 (10) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... at various assessees, including the assessees situated within the jurisdiction of Ahmedabad Commissionerate have been given benefit of paying the excise duty foregone from the Cenvat credit account. Under the circumstances, prima facie, there appears to be no reason to deny such benefit to the petitioners. It is found that the appellant unit was right in paying amount of counterveiling duty from the accumulated Cenvat credit and therefore the appeal on merit succeeds. Extended period of limitation - HELD THAT:- Since the appellant have made a detailed declaration before the proper officer of the department regarding the facts of payment of various kinds of the dues and utilisation of Cenvat credit in the month of August, 2012 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 was sent to the Assistant Commissioner of Central Excise mentioning the details of payment of various kinds of dues. The Assistant Commissioner, Vadodara-ii issued a no dues certificate vide their letter dated 13.10.2012. On receipt of the no-dues certificate, the same was also submitted by the appellant to Development Commissioner who has finally accepted the same and allowed de-bonding of 100% EOU unit. The department later on, on the basis of audit objection entertained a view that appellant has paid the counterveiling duty amounting to Rs. 8,36,96,677/- by utilizing Cenvat credit for raw materials, input goods imported and lying in stock which is wrong on the part of the appellant as amount of counterveiling which is a customs duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit which was lying in balance at the time of de-bonding of 100%EOU. Learned Consultant further submitted that they as a 100% EOU are a manufacturer of excisable goods under the Central Excise Law. As per Section 3 of the Central Excise Act, 1944 and Notification No.23/2003-CE dated 31.03.2003, as amended, the Appellant is liable to pay Excise duty under Section 3 of the Central Excise Act, 1944 and not Custom duty under Section 28 of the Custom Act, 1962. The Appellant is liable to pay the excise duty and computation of excise duty is equal to the aggregate duty of customs duty. It is only the method of computing the excise duty but same is certainly not a Customs duty. Further, in Rule 3(vii) manufacturer is allowed to take credit of CVD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le at the time of de-bonding 100% EOU can be paid from the accumulated Cenvat credit by an EOU Unit. We find that this issue is no longer res-integra as this issue in the case of Dishman Pharmaceuticals and Chemicals Pvt. Limited vs. UOI 2015-TIOL-2869-HC-AHM-CX has held as follows : - 6. The facts as emerging from the record clearly demonstrate that in case of similarly situated persons, namely, M/s. Alps Chemicals Pvt. Ltd. and others, as stated in Paragraph 9 of the memorandum of petition, the respondent authorities have permitted them to discharge the excise duty foregone from the Cenvat credit account instead of the cash payment. The petitioners have produced on record a copy of a communication dated 21-11-2014 of the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilized. Besides, as pointed out by the learned counsel for the petitioners, ultimately the excise duty foregone which is to be paid in cash, is going to be added back to the amount of Cenvat credit lying in the account of the petitioners, under the circumstances, the petitioners have clearly made out a prima facie case in their favour. Besides, as noted hereinabove, in case the petitioner company is required to pay the excise duty foregone in cash instead of from the Cenvat credit account, it is likely to face liquidity crunch, thereby causing irreparable injury to the petitioners. In Ralli Engine Ltd. v. Union of India and others (supra), this court, in the facts of the said case has held that when different companies situated in differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised the ground of limitation, on this, the fact is that the appellant have cleared the goods in DTA on payment of full duty by following the procedure such as issuance of excise invoice wherein the duty payment has been shown, the same particulars were reflected in their monthly ER-2 return. In this fact when the department was in complete knowledge regarding the clearance of finished goods in DTA, they were not prevented from verifying the fact that whether the appellant have obtained the permission from Development Commissioner or not. However, the department has not raised any objection at the relevant time, it is only subsequently on scrutiny of ER-2 return were carried out. There is no change of circumstances at the time of clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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