9911796707
TMI Blog2024 (8) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... s, there are no grounds for disallowing credit. The appellant is eligible to avail credit. The issue on merits is found in favour of the appellant. Time limitation - suppression of facts or not - HELD THAT:- There is no allegation that the appellant has suppressed facts with intent to evade payment of duty. The words used in the show cause notice is that the appellant has wrongly taken the cenvat credit on the basis of challans for which duty was paid under protest. The fact of paying duty under protest was well within the knowledge of the Department in 2016 itself. The credit has been availed on 30.09.2016. However, the show cause notice has been issued much later only on 30.07.2019 invoking the extended period - the Department has failed to establish grounds for invoking the extended period. The issue of limitation is answered in favour of the appellant. The impugned order is set aside - Appeal allowed. - HON BLE MS. SULEKHA BEEVI. C. S. , MEMBER ( JUDICIAL ) And HON BLE MR. VASA SESHAGIRI RAO , MEMBER ( TECHNICAL ) Shri M. S. Nagaraja , Advocate , for the Appellant Ms. O. M. Reena , Authorized Representative for the Respondent ORDER Per : Ms. Sulekha Beevi. C.S Brief facts are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant had availed the credit on 30.09.2016. The show cause notice has been issued only on 30.07.2019 invoking the extended period. There is no allegation of suppression of facts in the SCN. Further, the Department was well aware that the appellant has paid the duty under protest and there has been no suppression of facts. Ld. Counsel adverted to the letter issued by the Department on 01.07.2016 directing the appellant that they have to pay the duty as per the classification arrived by the Department. This would establish that the department was well aware that the appellant has paid the duty as per the provisional assessment. There are no grounds for invoking the extended period. It is prayed that the appeal may be allowed. 3. Ld. A.R Ms. O.M. Reena appeared and argued for the Department. The findings in the impugned order was reiterated. 4. Heard both sides. 5. The issue to be decided is whether the appellant is eligible to avail credit when the duty is paid during provisional assessment under protest. 6. The Customs Act, 1962 for payment of duty under protest as well as for provisional assessment. Rule 9 (1) of CCR 2004 specifically does not bar the availment of credit eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r view was taken by the Tribunal in the case of Hindalco Industries Ltd. (supra). Relevant para reads as under : 5. We have heard both the sides and perused the records. We find that the show cause notice proposed to deny the Cenvat on the ground that the credit on the bill of entry can be taken only if it is finally assessed and credit cannot be taken on provisionally assessed bill of entry. The show cause notice also contended that the duty so paid on the basis of provisionally assessed bill of entry is not a duty but the same is deposit, therefore, the credit of such deposit is not admissible. We find that the provisional assessment is also provided under a statute i.e. under Section 18 of the Customs Act, 1962, therefore, the duty paid on the provisional assessment of bills of entry is also with authority of law. Therefore, it cannot be said that the payment made under provisionally assessed bills of entry is a deposit and not a duty. The provisionally assessed bills of entry is also valid document for availing the Cenvat credit, for the reason that under Rule 9 of Cenvat Credit Rules only bill of entry is prescribed on the basis of which the payment of Customs duty was made, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a raised before the departmental authorities is canvassed. Under sub-section (4) of Section 33 of the Indian IT Act, 1922, the Tribunal is competent to pass such orders on the appeal as it thinks fit . There is nothing in the IT Act which restricts the Tribunal to the determination of questions raised before the departmental authorities. All questions whether of law or of fact which relate to the assessment of the assessee may be raised before the Tribunal : If for reasons recorded by the departmental authorities in rejecting a contention raised by the assessee, grant of relief to him on another ground is justified, it would be open to the departmental authorities and the Tribunal, and indeed they would be under a duty to grant that relief. 7.6 We further find that in the case of Nitco Tiles Ltd. v. CCE, Mumbai - 2007 (220) E.L.T. 827 (Tri. - Mum.), this Tribunal observed as under :- Further, the bar of unjust enrichment will also not apply in the present case. The appellants have taken credit of the tax paid by them; therefore the same cannot be said to be passed on to the customers. In these circumstances we hold that the Cenvat Credit taken by the appellant is nothing but refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Hon ble High Court of Punjab and Haryana in the case of M/s. V.G. Steel Industry v. CCE - 2011-TIOL-338-HC-P-H-CX where it has been held that when duty was paid in excess of what was payable, CENVAT credit cannot be denied unless the excess duty paid has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue has been decided in favour of the recipient assessee when excess duty is paid or duty is paid under protest. In the case of MDS Switchgear Ltd v. CCE Aurangabad [2001 (132) E.L.T. 405 (Tri. - Mumbai)] following was held by CESTAT in paragraph-7 of the order. 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 manufacturer to avail of the benefit of the duty paid by the supplier manufacturer. A quantum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise and Customs v. MDS Switchgear Ltd., 2008 (229) E.L.T. 485 (S.C.). . 9. The Tribunal in the case of Jayaswals NECO Limited (supra) held that the assessee is eligible to avail credit even if duty is paid under protest. Relevant para reads as under : 6. We find that in this case the appellants are receiving inputs under invoices showing the payment of duty. There is no dispute by the Revenue regarding the payment of duty by TISCO. Once the duty has been paid whether paid under protest or otherwise by the manufacturer of the inputs, the appellants are entitled for the credit in respect of the duty paid of the inputs. In this circumstances, the credit cannot be denied to the appellants only on the ground that the duty was paid by the manufacturer of the inputs under Protest. The impugned order is set aside and the appeal is allowed. 10. After appreciating the facts and following the above decisions, we are of the considered opinion that there are no grounds for disallowing credit. We hold that the appellant is eligible to avail credit. The issue on merits is found in favour of the appellant. 11. Ld. Counsel has argued on the ground of limitation. On perusal of para-5 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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