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2021 (9) TMI 191 - AT - Central ExciseCENVAT Credit - 1%/2% Additional Duty of Customs (CVD) paid on the imported coal - Customs Notification No. 12/2012-Cus dated March 17, 2012, as amended on by Notification dated March 1, 2016 - CVD paid @2% is duty of excise as specified in the Excise Tariff Act or not - HELD THAT:- A Division Bench of the Tribunal in M/S HINDALCO INDUSTRIES LTD. APPELLANT VERSUS GST, BHOPAL RESPONDENT [2018 (3) TMI 1124 - CESTAT, NEW DELHI], considered this precise issue and held that if additional duty of customs has been paid after taking into consideration the Customs Notification dated March 17, 2012, there would be no bar for availment of CENVAT credit in terms of rule 3(vii) of the Credit Rules. The provisions of rule 3 of the Credit Rules and the three decisions rendered by the Tribunal in Hindalco Industries Ltd., JAYPEE SIDHI CEMENT PLANT VERSUS COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX, CUSTOMS AND EXCISE, JABALPUR [2019 (7) TMI 250 - CESTAT NEW DELHI] and M/S. ASAHI SONGWON COLORS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & ST., VADODARA [2018 (9) TMI 159 - CESTAT AHMEDABAD] were examined by the Tribunal and after distinguishing the decision of the Gujarat High Court in LONSENKIRI CHEMICALS INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE CUSTOMS AND SERVICE TAX, VADODARA-I [2018 (9) TMI 1439 - GUJARAT HIGH COURT], which decision had also subsequently been distinguished by the Tribunal in C.C.E. & S.T.- Surat-I vs. M/s. Aarti Industries Limited [2019 (3) TMI 240 - CESTAT AHMEDABAD], the Tribunal concluded that if additional duty of Customs was paid after taking into consideration the Customs Notification dated March 17, 2012, there would be no bar for availment of CENVAT credit in terms of rule 3 (vii) of the Credit Rules. In view of the decision of the Tribunal in the appellant’s own case [2020 (10) TMI 1032 - CESTAT NEW DELHI], it has to be held that the Commissioner committed an illegality in disallowing CENVAT Credit of 1%/2% CVD paid on the imported coal under the Customs Notification No. 12/2012-Cus dated March 17, 2012, as amended on by Notification dated March 1, 2016. The Commissioner has also taken into consideration the fact that for the Financial Year 2012-13, the appellant had paid duty under the Excise Notification because of which credit was not admissible - The appellant has stated that though the appellant had taken CENVAT credit of CVD paid in terms of the Excise Notification, but the appellant subsequently suo moto partially reversed CENVAT credit and with respect to the balance CENVAT credit of 1% CVD paid, the appellant paid additional CVD at the rate of 5% under protest but availed CENVAT credit of only 1% of CVD paid. Though this fact was pointed out by the appellant, but the Commissioner failed to consider this aspect. The order dated February 26, 2019 passed by the Commissioner adjudicating the five show cause notices deserves to be set aside - Appeal allowed.
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