9911796707
TMI Blog2025 (3) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant in this case, does not avail CENVAT credit. In the instant case, the appellants are in a better position inasmuch as CENVAT credit was not available to them in case the supplier availed the refund. In fact, the condition in Para 8.5 of the Exim Policy needs to be looked at from the supplier's angle and not from the recipient's angle, in this case, the appellant's angle. As long as the appellant has not availed the credit, the appellant has not violated any condition of the Notification regarding the exhaustion of the available credit. As submitted by the appellants, exhausting the credit necessarily means the credit they have taken and not certainly the credit which they have not taken. If the appellant had more credit, they would h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.1,04,10,673/- Rs.1,43,55,764/- Rs.7,17,20,905/-; for the month of April 2007, July 2007 and April 2007 to January 2008; by issuing Show Cause Notices dated 30.04.2008, 31.07.2008, 28.08.2008 respectively. The Show Cause Notices were adjudicated vide the impugned orders all dated 14.01.2010 demanding inadmissible CENVAT credit of Rs.13,13,990/-,Rs.18,50,178/- Rs.28,53,685/- along with interest and penalty of Rs.5000/- each in respect of first two Show Cause Notices while dropping the penalty in the third Show Cause Notice. Hence, these appeals. 2. Learned Counsel for the appellants submits that the appellant procured goods under EPCG Scheme, in terms of Paragraph 5.6 and 8.2 of the Exim Policy 2004- 2009, from a domestic manufacturer; i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.C.)] and submits that provisions of Notification Nos. 30/97-Cus. and 82/92-C.E. should be read harmoniously and supplies against Advance Release Order issued under Para 7.4 of Export-Import Policy should be treated as eligible for exemption from additional duty of customs also. The Tribunal also held that the status of Advance Release Order is same as advance licence. Therefore, supplies against Advance Release Order had also to be on same terms, if domestic supply was to match imports. 4. Learned Counsel further submits that procurement from domestic manufacturers is at par with the imports under EPCG Scheme; the appellants would not have paid any duty if they imported the said capital goods; instead of importing, they have procured fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund availed by them was not proper and therefore, Show Cause Notices were correctly issued and confirmed. He relies on Dilip Kumar & Co. reported as 2018 (361) ELT 77 (SC). 6. Heard both sides and perused the records of the case. The case of the appellant is that in terms of Exim Policy, they have procured capital goods from domestic manufacturers; in terms of Para 8.5 of the Exim Policy 2004-2009, the suppliers can avail the refund of Terminal Excise Duty paid by them under the condition that the recipient of capital goods shall not avail CENVAT credit. The appellants have not availed the CENVAT credit under the notion that the supplier has availed refund of Terminal Excise Duty and therefore, they have not violated any provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LA; subsequently, they claimed the refund of the said duty so paid in cash; inasmuch as the refunds have to be availed by self-crediting the same, the Revenue entertained a view that such refunds were in excess and undue; proceedings were initiated by way of issuance of a show cause notice dated 20.05.2007 proposing to recovery the said refund claims. This Bench while deciding the case observed as follows: 5. After hearing both the sides we find that there is no dispute about the facts. In terms of the notification, the appellant was first required to avail the Cenvat credit of duty paid on the raw materials and to exhaust the same first before paying the deficient duty, if any, through cash. As per the appellant, they did not avail the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paying the higher amount of duty in cash. In fact, it can be specifically observed that by non-availment of credit was disadvantageous to the appellant as they had to shelve out excess cash from their pockets for payment of the differential duty. 8. We find that in the above case, the appellant had an option to avail CENVAT credit, of the CVD paid on the raw material imported by them. They did not avail the CENVAT credit and this Bench found that by not availing such credit, the appellants have not violated any provisions of the Notification. We find that in the instant case, the appellants are in a better position inasmuch as CENVAT credit was not available to them in case the supplier availed the refund. In fact, the condition in Para 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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