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2022 (5) TMI 1035 - AT - Central ExciseCENVAT Credit - basic allegation against the appellant is that appellants while transferring the imported machines to its customers, had charged amount of CVD and additional duty on the machines imported by him but the said amount has not been deposited by the appellant in the Government Exchequer - HELD THAT:- There is no denial to the submission of the appellant that no Cenvat credit has been availed by the appellant. These observations are sufficient for me to hold that Commissioner (Appeals) has committed an error while holding “ I find that there is no reference to availment of credit in the said provisions (Sec 28B or Sec 11D) whether credit is availed by the Appellant or not. Since the duty has been collected from customers, the appellant has no other option but to pay the same to govt. exchequer. Accordingly, I hold that the adjudicating authority has correctly held that the Appellant is liable to pay the duty amount of Rs.10,44,436/- along with interest collected from their customers under the provisions of Section 28B of Customs Act, 1962 read with Section 11D of Central Excise Act, 1944.” Appellant while submitting today has produced on record documents in the form of commercial invoices through which the appellant has purchased the machines which got imported after purchase. The bill of entry filed for those machines has also been produced on record. Perusal thereof shows that all the articles mentioned in the commercial invoices are mentioned in the said bill of entry (nine different machines and several spare parts) - admittedly the appellant has not availed the Cenvat credit of the aforesaid duty paid it cannot be denied that appellant was entitled to claim the same under Rule 3 and 5 of Cenvat Credit Rules. No irregularity is opined to have been committed while charging the said amount of CVD and additional duties, the credit whereof was not taken by the appellant, from its customers. The finding/the reason quoted is apparently wrong as appellant has been an importer and not the manufacturer. Question of any amount of excise duty does not at all arise to ever be the liability of the appellant. Further the silence of any reference to the availment of credit in Section 28B of Customs Act or Section 11D of Central Excise Act is also observed to be an erroneous finding for the reason that irrespective both the sections are silent about the availment of credit but the simultaneous provisions in Rule 3 and Rule 5 of Cenvat Credit Rules entitle the appellant to avail the said credit. Admittedly the same has not been availed. Hence, the collection of amount of said duty from the customers was justified. Appeal allowed - decided in favor of appellant.
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