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TMI Blog2024 (6) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ONER OF GST CENTRAL EXCISE, TIRUCHIRAPPALLI [ 2021 (10) TMI 13 - CESTAT CHENNAI] . The demand raised and confirmed denying the Cenvat credit availed on CVD paid on imported Steam Coal was set aside. The demand cannot sustain and requires to be set aside. The impugned orders are set aside - Appeal allowed. - MS. SULEKHA BEEVI.C.S., MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Shri. R. Parthasarathy, Consultant, for the Appellant Shri. M. Selvakumar, Authorised Representative for the Respondent ORDER The issue involved in all these appeals being the same they were heard together and are disposed of by this common order. 2. The appellant is engaged in manufacture of Clinker and Cement and are registered with the Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable in the system. This concessional rate of 1%, however, is available only if the Cenvat credit on inputs and input services is not availed of; otherwise all these items attract 5% Excise duty as prescribed vide notification 2/2011-CE dated 01.03.2011 and Tenth Schedule to the Finance Bill. At the time of updating of ICES, the Directorate of Systems had been advised not to feed notification 1/2011-CE dated 01.03.2011 in the system as 1% rate will not be applicable for CVD purposes. There should have been no confusion on the subject. Since the CVD is levied to provide a level playing field for the domestic manufacturers, CVD is charged at a rate equal to excise duty rate. However, in respect of these 130 items, there are two excise duty r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No.12/2012 Cus dated 17.03.2012 was issued covering Steam Coal under Sl.No.123 with NIL rate of Basic Customs Duty and CVD at 1% adv. 5. Subsequently, vide Notification No.21/2012 CE (NT) dated 27.03.2012 Rule 3 (1) of the Cenvat Credit Rules, 2004 was further amended inserting another proviso debarring availment of Cenvat Credit of duty paid on the goods specified in Sl.No.67 or 128 of Notification No.12/2012-CE dated 17.03.2012 availing the exemption there. 6. Therefore, from 27.03.2012 while clause (i) allowed CENVAT Credit of duty of excise specified in the First Schedule to Central Excise Tariff Act 1985 leviable under the Central Excise Act, the proviso to the said clause debarred taking of Cenvat credit of the duty of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te show cause notices were issued to the appellants for the different periods proposing to deny the CENVAT credit and to recover the same along with interest. After due process of law, the original authority, confirmed the demands along with interest and imposed penalties. Aggrieved by such order, appellant is now before the Tribunal. 9. The Ld. Consultant Shri. R. Parthasarathy, appeared and argued for the appellants. It is explained by the consultant that Rule 3 of CCR 2004 does not restrict availment of Cenvat credit of CVD at the rate of 1%/2% paid on Steam Coal imported and subjected to CVD assessment under notification 12/2012-Cus dated 17.03.2012 as amended. In fact, Rule 3 of CCR 2004 restricts only the Cenvat credit of duties of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. CGST and CE, Trichy 2021 (10 TMI 13 CESTAT, Chennai). The relevant part of the decision reads as under: 10. From the submissions made by the Ld. Counsel as well as after perusal of the decisions, placed before us, we are of the considered opinion that the issue stands covered by the above decision. The bar to take cenvat credit is only when the benefit of exemption specified at Sl.No.67 and 128 under Notification No.12/2012-CE dt. 17.3.2012 is availed. The CCR 2004 does not impose any bar or restriction in availing credit when the benefit of exemption is availed under the Notification No.12/2012-Cus. dt. 17.3.2012. The issue stands decided in the decision of Hindustan Zinc Ltd. (supra). The relevant paragraphs of said decision are repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Rule 3(1) of the Cenvat Credit Rules, 2004, clause 7 thereof entitles the appellants to avail the Cenvat credit in the given circumstances. The said Rule itself clarifies that the Cenvat credit of duty of excise is not allowed to be taken when paid on any goods specified under S. Nos. 67 and 128 of Excise Notification No. 12/2012, dated 17-3-2012. Admittedly, the notification relied upon by the department for denying the impugned benefit to the appellant is Customs Notification No. 12/2012, dated 17-3-2012. The restriction of Rule 3 is not applicable to the said notification. Above all, the Hon ble Supreme Court in the case of SRF Ltd. v. CC Chennai [2015 (318) E.L.T. 607 (S.C.)] has held that Excise Notification No. 12/2012 is appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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