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2013 (6) TMI 239 - AT - Central ExciseCenvat Credit on inputs imported under the DEPB Scheme denied - Additional Duty of Customs (CVD) was adjusted through DEPB and not paid by cash - whether the appellant is eligible to take credit in respect of the CVD paid by debiting in the DEPB as per the provisions of Exemption Notification NO. 45/2002-Cus? - Held that:- As decided in Essar Steel Ltd [2004 (8) TMI 123 - CESTAT, NEW DELHI] mere debit in DEPB pass book is not sufficient for eligibility of Modvat credit availed on the strength of Bills of Entry wherein importers availed benefit of Notification NO. 34/97-Cus which exempts duties of customs when duty leviable on goods debited to DEPB. As per para 4.3.5 of Exim Policy 2002-07 specifically provides that in case where the Additional Customs duty is adjusted from DEPB no benefit of Cenvat Credit or duty drawback is eligible. In view of the clear provisions of the Exim Policy and in view of the admitted fact no infirmity in the impugned order whereby the demand is confirmed after denying the credit along with interest and penalty. In respect of the time bar, the authorized signatory in his statement stated that the appellants were aware of the fact that as per the Exim Policy no credit is admissible. Further, the appellant has not disclosed the fact that duty has been paid by making debit in the DEPB while denying credit in the monthly return. Thus no infirmity in the order whereby demand is confirmed by invoking the extended period of limitation. Penalty on the managing Director - as the appellant availed benefit of Notification No. 45/2002-Cus and was aware of the Exim Policy appellants were not eligible for credit of duty adjusted from DEPB and this fact was admitted by the Managing Director. Therefore, no ground to interfere with the impugned order imposing penalty on the Managing Director. In favour of revenue.
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