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TMI Blog2024 (9) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... s can only be customs duty. Customs duty cannot be discharged by utilizing cenvat credit as the cenvat credit rules do not prescribe such utilization. However in the instant case, no demand of custom duty has been made but demand of Central Excise duty has been made. From the decision in MATRIX LABORATORIES LTD AND MYLAN LABORATORIES LTD VERSUS COMMISSIONER OF CENTRAL TAX MEDCHAL - GST (VICE-VERSA) [ 2023 (6) TMI 458 - CESTAT HYDERABAD] also it becomes clear that in respect of imported inputs cleared by EOU only demand of custom duty can be made under Section 28 of the Customs Act, 1962 in respect of inputs obtained duty free cleared to DTA by EOU, the same can be cleared on payment of Central Excise duty and in such cases, notice under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rials imported under Notification 52/2003-Cus to the domestic tariff area (DTA) after intimating to the department. The appellant cleared the said goods by issue of invoice and paid an amount equal to the sum of basic custom duty, CVD, CESS and SAD by debiting the same in the cenvat credit account. 2.1 Central Excise Revenue Audit (CERA) raised an objection on the manner of payment of duty in respect of such clearance by debiting cenvat credit account and asserted that in such situation duty should have been paid in cash. Revenue issued show cause notice to the appellant challenging the use of cenvat for payment of such duty. The show cause notice invoked various provision of cenvat credit rules, specially Rule 3(4) of the Cenvat Credit Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erving all the facts mentioned above, the Commissioner upholds the order-in-original except for reducing the penalty by half. Learned counsel pointed out that there was no charge in the show cause notice for any demand of customs duty. The order-in-original confirmed Central Excise duty on the appellants although the show cause notice was issued under Section 11A of the Central Excise Act. He pointed out that the order in appeal clearly holds that the duty can be demanded in the instant case is custom duty and not central excise duty. Learned counsel pointed out that the case made up by the impugned order is totally different from that in the order-in-original. He pointed out that order-in- original relate solely to the central excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of cenvat credit for the purpose of payment of such custom duty. 6. From the facts of the case, it is obvious that the amount to be paid at the time of clearance of imported goods to DTA in these circumstances is custom duty and therefore, any demand of duty in respect of such goods can only be customs duty. Customs duty cannot be discharged by utilizing cenvat credit as the cenvat credit rules do not prescribe such utilization. However in the instant case, no demand of custom duty has been made but demand of Central Excise duty has been made. 7. Learned counsel has relied on the decision of Tribunal in the case of Matrix Labroatories Limited 2023 (6) TMI 438 (CESTAT- HYDERABAD) . It is seen that even in the said decision in para 11 and 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d decision also it becomes clear that in respect of imported inputs cleared by EOU only demand of custom duty can be made under Section 28 of the Customs Act, 1962 in respect of inputs obtained duty free cleared to DTA by EOU, the same can be cleared on payment of Central Excise duty and in such cases, notice under Section 11A of the Central Excise Act, 1944 can be raised. In the instant case, the notice has been issued invoking Section 11A(5) of the Central Excise Act and same is not proper provision for demanding the Custom duty. In the instant case, no violation of provision of Notification 52/2003 has been cited for demanding the said duty. The provisions of Section 28 of the Customs Act have also not been invoked and consequently, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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