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2019 (10) TMI 635 - CESTAT KOLKATAAdjustment of CENVAT Credit - Duty Free Credit Entitlement (DFCE) certificates - N/N. 53/2003-Cus dated 01.04.2003 - It is the case of the department that the assessee could adjust Cenvat Credit only w.e.f. 17.11.2005 when the amendment was made to the aforesaid notification no. 53/2003 vide notification no. 97/2005-cus dated 17.11.2005 - HELD THAT:- The issue decided in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX VERSUS LUPIN INDUSTRIES LTD [2017 (12) TMI 1021 - CESTAT MUMBAI] where it was held that Respondent is an exporter and is, thereby, entitled to a refund of taxes/duties on all inputs and it is the superfluous activity of collecting the additional duty for subsequent refund that would be the consequence of the proposition made on behalf of Revenue. It is noted that in the present case, the authorities have not disputed the customs exemption claimed by the assessee and therefore, it is not open to the authorities to dispute the availment of cenvat credit which is otherwise available in terms of the CENVAT Credit Rules, 2004, as also clarified vide circular dated 13.10.2006. In a similar case where the cenvat credit of SAD amount credit was sought to be denied to the assessee, which was paid by the assessee through DFCE licence, the Tribunal in TECUMSEH PRODUCTS INDIA PVT. LTD. VERSUS COMMR. OF C. EX., HYDERABAD [2010 (1) TMI 587 - CESTAT, BANGALORE] has held that the assessee was legally eligible for cenvat credit. The assessee is eligible for credit of the countervailing duty paid through debit in the DFCE certificates even prior to 17.11.2005 - Appeal allowed - decided in favor of assessee.
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