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TMI Blog2023 (12) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent ORDER RAJU The following appeals are filed by the Revenue against the order of Commissioner (Appeals) allowing the appellants to use the DEPB scrips for the purpose of payment of Clean Energy Cess : 1. C/13860/2014 2. C/10709/2018 3. C/10710/2018 4. C/10711/2018 5. C/10708/2018 1.2 Ms. Welspun Steel Ltd has been filed Appeal No. C/11474/2017, seeking refund of the Clean Energy Cess paid by them in cash in addition to the debits made through DEPB scrips. Cross objection application No. 10690 of 2017, has been filed by revenue against the said appeal. 2. Learned Counsel for Welspun Steel Ltd., pointed out that the issue regarding eligibility of use of DEPB for the purpose of Clean Energy Cess has been decided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT credit or both. In these situations, the Government has taken a decision that cess, when paid on goods produced in India, as duty of excise, must be paid in cast in the letter of TRU dated 24.06.2010, where it was mentioned that this amount is only payable through cash and not Cenvat credit and that amendment in Cenvat credit Rules were being made. it only and only referred to the restrictions on payment through Cenvat credit for goods produced in India and liable to duty of excise. However, the Customs duty is never payable through CENVAT credit. Cess is equivalent to duty of excise and not a duty of excise per se. It can be paid, as additional duty of customs levied under section 3(1) of the Customs Tariff Act. 1975, either in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U dated 24.06.2010, which also essentially disallow the utilization of Cenvat Credit for the purpose of payment of "Clean Energy Cess" leviable under Section 83 of the finance Act, 2010. It is seen that the CENVAT Credit rules are irrelevant for the purpose of availing the benefit of DEPB Script in paying the contravening duty. The said provision of CCR can by no means prohibit utilization of DEPB Scripts. In this regard, we do not find any merit in the appeal filed by the revenue and the same is dismissed." 2.2 In view of above, we find that the issue is squarely covered by the aforesaid decisions. The appeals filed by revenue Sr. no. 1, 5 above in para 1 are dismissed. 2.3 Learned Counsel for the Welspun, pointed out that they had paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for further revalidation of DEPB Licence and DFPB re credit provided by the revenue is of no use. It is further submitted by the appellant that the respondent ought to have appreciated that DEPB licences were expired and there is no provision in Handbook of procedures 2009-14 for further revalidation of DEPB licence and DEPB re credit provided by the revenue is no benefit/use for the appellant. Appellant further submitted that the respondent erred in holding that the Appellant's application for revalidating of DEPB licence is lying before PRC. I find that the adjudicating authority had concluded that their application for revalidating the DEPB licence is lying alive before the PRC. I find the aforesaid facts and issues need proper ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Larger Bench of the Tribunal. He was bound to follow the judgment of the Hon'ble Supreme Court, which he did and rightly held that the Commissioner (Appeals) Continues to have the power of remand under post 2001 provisions of the Central Excise Act, 1944. 12. In view of the above, we are of the considered opinion that without properly understanding the judgment of the Appellate Tribunal the appellant has framed second question of law in both these appeals viz. "Whether a single member bench can overrule a decision of the Larger Bench decision on the same issue. There is no question of overruling the judgment of the Larger Bench. As stated earlier, the learned Single Member has held that the judgment of the Larger Bench of the appeal pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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