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TMI Blog2024 (8) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... nly provisionally assessed and is yet to be finalized. Show cause notice dt. 30.07.2019 was issued to the appellant alleging wrongful availment of cenvat credit and proposing to recover the same along with interest. After due process of law, the original authority confirmed the demand, interest and imposed penalties. Aggrieved by such order, the appellant is now before the Tribunal. 2. The Ld. Counsel Shri M.S. Nagaraja appeared and argued for the appellant. It is submitted that the appellant had imported iron ore and classified them under CETH 2601 for which the applicable CVD was NIL. The Department objected to the classification taking the view that the imported goods are iron ore concentrates and would attract CVD @ 12%. The appellant thereafter paid the duty on various dates in 2016 under protest. They submitted a letter on 25.8.2016 evidencing the payment of duty. The Department was of the view that the appellant is not eligible to avail credit as the protest has not been vacated and assessment was only provisional. The Ld. Counsel submitted that the Customs Act, 1962 provides for provisional assessment and therefore the Department cannot deny the credit merely alleging that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty paid on provisionally assessed Bill of Entry. Under Rule 9 of the Cenvat Credit Rules, the documents have specifically been prescribed on which the credit could be taken by the manufacturer. Under Rule 9(1) of the Cenvat Credit Rules at Sl. No. 'C', the main document mentioned is "Bill of Entry". We find that the Sl. No. 'C' of Rule 9(1) does not state that Bill of Entry should not be provisionally assessed or Bill of Entry should be finally assessed. From this entry at Rule 9(1) 'C, Bill of Entry whether it is provisional or final is the document on which credit can be availed by the manufacturer. We also find that under Sec. 2(4) of the Customs Act, Bill of Entry means a Bill of Entry referred to in Sec. 46 of the Customs Act and under Sec. 2(2) assessment includes provisional assessment, reassessment and any order of assessment in which duty assessed is 'Nil'. From the scheme of the Customs Act, when goods are cleared against a Bill of Entry, the Bill of Entry has to be assessed either provisionally or finally and provisional assessment is also an assessment under Sec. 2(2) of the Customs Act. Goods cannot be cleared from the Customs unless the Bill of Entry is assessed. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow : 5.1 In the case of Kesarwani Zarda Bhandar (Supra) the Tribunal passed the following order paragraph-5. 5. I have carefully considered the submissions made by both the sides. I find that there is no dispute that the appellant have paid the service tax on GTA service, which was performed for transportation of goods from their Allahabad unit to Kalher depot. Therefore in my view the service tax paid in respect of certain service even if service was undertaken other than the appellants factory, the credit can be availed at anyone place. In the present case, the credit was admittedly taken by the appellant and the same was not taken by any other unit. Without prejudice to the above, I also found that as per the judgments relied upon by the Ld. Counsel, even if It is accepted that on the part of the appellant no service exist, the payment of service tax made by the appellant is the service tax paid in excess, therefore the credit of such excess paid service tax is allowable. The decisions relied upon by the Ld. Counsel are reproduced below : (i) Bajaj Allianz General Industries Co. Ltd. (supra) has held as under - "7.5 From the above discussion, it is very much clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax w.e.f. 1-1-2005. The appellant paid the Service Tax in respect of the said services availed during the month of December, 2004 and took the credit of the same. The Revenue entertained a view that the services availed in December, 2004 were not taxable and as such, there is no liability on the part of the appellant to pay the Service Tax. As a result, the credit of Service Tax availed by them is not admissible to them. 5. I agree with the Learned Advocate that it is the credit of Service Tax paid which is available to the assessee and not credit of Service Tax payable. Admittedly the appellants have paid the Service Tax on the GTA services availed during December, 2004 though they were not liable to pay the same. Having paid the Service Tax, they are entitled to the credit of the same. It is to be noted that no objection was raised by the Revenue at the time of payment of Service Tax by the appellant." (iii) Sterlite Industries (I) Ltd. (supra) has held as under- 2. During March 2006 to April 2006. the appellants entered into a contract with the transport agencies to carry copper anodes from Tuticorin to Sllvasa. For this period, the appellants paid Rs. 85.51,033/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat Credit. The impugned order is set aside and the appeal is allowed. 5.2 In the case of Sterlite Industries (I) Ltd. (Supra) on the similar issue following order was passed :- "5. It has not been contested by the appellants that Service tax was not payable in respect of rail transport. The Department has also proceeded on the basis that rail transport service was not taxable prior to 1-5-2006. Hence, the tax amount of Rs. 2,25,702/- which was paid by the appellants was not at all due to the exchequer. However, the amount has been paid by the appellants mistakenly believing that the same was payable and they have also taken the credit of the same under the bona fide belief that such credit was available. Considering the fact that the appellants have taken only credit of tax paid by them which in the first instance was not payable, there can be no demand against them as no revenue has been lost to the exchequer by merely taking credit of the amount which in the first place was not recoverable from them. Hence, ends of justice would be met if the demand is set aside along with the demand of interest and penalty. The view taken by me above finds support from the decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that appellant has correctly taken the CENVAT credit on the inputs received in the absence of any action taken by the revenue at the supplier's end." 5.4 The similar issue the Tribunal Mumbai Bench in the case of MDS Switchgear Ltd. (Supra) express the similar view which is as under :- 6. We have carefully considered the submission made before us. 7. Reasons given by the appellants for the alleged inflation of the value of the intermediate goods are logical. What was required of the Commissioner was to examine the quantum of the loading of the assessable value by the Modvat credit on the earlier inputs. That exercise has nowhere been done. If the Department was of the opinion that the value of the final product was depressed, then they could have charged the Jalgaon unit with under-invoicing of their product. That has also not been done. The valuation as given by the Sinnar unit was duly approved by the Department and the payment of duty was also duly accepted. We find absolutely no substance in the attempt of the Learned Commissioner to convert a part of the duty so paid into "deposit of duty". There is no legal basis for such presumption. The rules entitled the recipient m ..... 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