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2009 (3) TMI 464 - KERALA HIGH COURTCenvat Credit- The connected appeals arise from orders of the Customs Excise and Service Tax Appellate Tribunal holding that appellants are not entitled to claim cenvat credit on additional customs duty payable under Section 3 of the Customs Tariff Act that was debited in the pass book issued under the DEPB Scheme. Held that- In fact if the credit available in the pass book is less than the additional customs duty payable under Section 3, the importer can pay the difference in duty in cash and avail credit to that extent. While we agree with the view expressed by the Tribunal in the above reported decision, we find that entirely conflicting view is expressed in the clarification issued by the Central Board of Customs and Excise. If the clarification is treated as applicable for prior periods as well and other importers who have availed exemption on additional customs duty payable under Section 3 of the Customs Tariff Act are granted cenvat credit, we see no reason why the same should be denied to appellants. While upholding the view of the Tribunal we remand the case to the adjudicating authority for getting clarification from the Board of Customs and Excise and for granting the relief to the appellants if similar other importers are allowed to take cenvat credit based on the clarification issued above. However, if the clarification is not retrospectively applied to other importers, then the appellants also shall not be entitled to the benefit.
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