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2024 (1) TMI 769 - CESTAT NEW DELHIValidity of availing CENVAT credit of CVD paid on import of coal - Recovery/reversal of credit along with interest and equivalent penalty - credit in respect of CVD paid under notification no.12/2012-Cus. dated 17.03.2012, on import of coal - HELD THAT:- Whereas the appellant have imported coal and CVD of 2% is leviable in terms of Customs notification no. 12/2012 – Cus. dated 17.03.2012. There is no restriction provided in Rule 3 as regards duty paid under Customs notification. This restriction is applicable only in case of indigenous goods on which the excise duty at 2% was paid by availing notification no.12/2012-CE which is not the case here. Reference was made to the decision of the Supreme Court in M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CHENNAI, COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) , NEW DELHI [2015 (4) TMI 561 - SUPREME COURT] which had clarified that notification no.12/2012-CE is applicable only in respect of indigenously manufactured coal and not in respect of imported coal. Even if the importer wants to avail the exemption notification no.12/2012-CE for payment of CVD, the same will not be available to the importer and therefore in the case of import, the notification no.12/2012-CE is not relevant. The decision of the High Court of Gujarat in the case of Lonsenkiri Chemicals Industries [2018 (9) TMI 1439 - GUJARAT HIGH COURT] has also been consistently found to be distinguishable for the reason, to quote from the decision of the Principal Bench of the Tribunal in Hindustan Zinc [2020 (10) TMI 1032 - CESTAT NEW DELHI], where it was held that The appellant therein had availed the benefit of serial numbers 67 and 128 of the Central Excise Notification dated March 17, 2012. It is for this reason that the High Court held that because of the condition set out in proviso (b) of rule 3(1)(i) of the CENVAT Credit Rules that the appellant would not be entitled to avail CENVAT credit. It is found from the aforesaid decisions that a consistent view has been taken by the various Benches on the provisions of Rule 3(1) and the distinction between the customs notification and the central excise notification. There is no reason to take any contrary view in the present case where the respondent has paid additional duty of customs under Section 3(1) of the Customs Tariff Act and availed the benefit of the Customs notification dated 17.03.2012 and also availed Cenvat Credit of the additional duty of Customs under Rule 3(1)(vii) of the Cenvat Credit Rules. The impugned order of the Commissioner (Appeals) upheld - The present appeal filed by the department, is accordingly dismissed.
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