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2023 (11) TMI 365 - CESTAT MUMBAIRecovery of CENVAT Credit - availment of credit on duty discharged by the supplier of ‘copper’ to them which was dropped by the adjudicating authority - competent reviewing authority has concluded that the respondent was not eligible for availing CENVAT credit as the procurement of such goods on payment of duty is not in concord with scheme of ‘advance licence’ in the Foreign Trade Policy (FTP) - HELD THAT:- The factum of payment of duty by the appellant on procurement of copper is not in dispute. In terms of rule 3 of CENVAT Credit Rules, 2004, with duty liability having been discharged and the procured goods conforming to definition of ‘inputs’ in rule 2(k) of CENVAT Credit Rules, 2004, there is no ground for disallowance of the said credit. Furthermore, the goods cannot be said to be exempt inasmuch as the notification relied upon in the appeal of Revenue is a non-tariff notification which does not have the effect of section 5A of Central Excise Act, 1944 and is merely procedural and conditional - It is also settled law that it is not open to the central excise authorities having jurisdiction over the buyer to determine leviability to duty of a seller in another jurisdiction. The duty having been discharged by manufacturers of copper who had supplied ‘inputs to the respondent, there is no ground for denial of eligibility for CENVAT credit. Furthermore, the primary contention in the appeal of Revenue is that on identical matter was pending resolution, in their appeal, before the Hon’ble High Court of Bombay in COMMISSIONER VERSUS OLEOFINE ORGANICS (INDIA) PVT. LTD. [2015 (10) TMI 650 - BOMBAY HIGH COURT] - With the disposal of that appeal, discarding the challenge mounted by Revenue against the order of the Tribunal permitting availment of credit, the grounds of appeal itself ceases to exist. The appeal lacks merit and is, accordingly, dismissed.
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