TMI Blog2022 (4) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that they were not able to utilise the Cenvat Credit during the relevant period. Keeping in view that the certificate of origin was alleged to be incorrect, based whereupon the show cause notice was issued in the year 2005 itself. Nothing has been produced by the department to prove the said allegation. Per contra the Certificate of origin is admittedly on record. Presumption of correctness is attached thereto. Same has not been rebutted by the department. Appellant in addition has produced the documents i.e. invoices etc. - all requirement of section 11B Central Excise Act have been met with by the appellant. Accordingly the appellants are entitled for the refund of CVD along with the interest to be calculated from the date of payment thereof. There being apparent delay on part of the department authority in passing final assessment order. The appellant is held to be entitled to the refund of the CVD with consequential benefits - Appeal allowed - decided in favor of appellant. - CUSTOMS APPEAL NO. 50758/ 2020 - FINAL ORDER No. 50297 /2022 - Dated:- 30-3-2022 - MRS RACHNA GUPTA, MEMBER (JUDICIAL) Ms Priyanka Goel, Advocate for the Appellant Ms Tamana Alam, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 16/2020 dated 27.2.2020. Being aggrieved of the said rejection of the refund of CVD that the present appeal has been filed by the appellant. 3. I have heard Ms Priyanka Goel, learned Counsel appearing for the Appellant and Ms Tamana Alam, learned Authorised Representative appearing for the Department. 4. It is mentioned by the appellant that the Bills of Entry no doubt are of the year 2004. The impugned amount of CVD was also deposited in the year 2005. However the provisional assessment of impugned Bills of Entry was objected vide Show Cause Notice in the year 2005 itself. The appellant opted not to utilise the CENVAT Credit of the disputed CVD. The said order was finally decided by the Tribunal thereof vide Final Order dated 14.10.2017 confirming the entitltement of the appellant to have the benefit of notification No. 20/2000 based upon the certificate of origin from Sri Lanka. In terms of the said order since the appellant who was not leviable to pay the CVD, that the appellant filed the refund claim in the year 2018. It is submitted that the department has wrongly held the refund claim to be barred by time. The order of rejection thereof is absolutely unreasonable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent States or, if a like alcoholic liquor is not produced or manufactured in any State, then, having regard to the excise duty which would be leviable for the time being in different States on the class or description of alcoholic liquor to which such imported alcoholic liquor belongs. Explanation. - In this sub-section, the expression the excise duty for the time being leviable on a like article if produced or manufactured in India means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty. 2. .. 3. .. 4. .. 5. .. 6. .. 7. .. 8. .. 9. .. 10. .. 11. .. 12. .. 7. A plain reading of the aforesaid provision makes it clear that additional duty which is equal to excise duty for the time being leviable on a like article if produced or manufactured in India, is to be levied on any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible to be taken as Cenvat Credit by a manufacturer or producer of final products or a provider of output service. Sub-rule (4) thereof specifies as to where Cenvat Credit may be utilized for payment. 9. Learned Counsel for the appellant has by placing reliance upon the decision of Delhi High Court in the case of Commissioner of Central Excise, Delhi I (supra) and that of Punjab and Haryana High Court in the case of Simplex Pharma Pvt Ltd. (supra) has argued that additional duty under section 3 of the Customs Tariff Act, 1975 is treated as countervailing duty and is permitted to be taken as Cenvat Credit under rule 3 of Cenvat Credit Rules, 2004. Further, in terms of section 11B of Central Excise Act, 1944 read with Rule 16 of Central Excise Rules, 2002, appellant is entitled to claim refund of unutilized Cenvat Credit. 10. It is true that additional duty levied under section 3 of Customs Tariff Act, 1975 is in the nature of a countervailing duty to protect the interest of the domestic manufacturers and it is permissible under Cenvat Credit Rules, 2004 for it to be treated as Cenvat Credit. However, any refund of unutilized Cenvat Credit can be taken if it fulfils the conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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