TMI Blog2009 (3) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al duty leviable under Section 3 of the customs Tariff Act equivalent to the duty of exercise specified under clauses (i) to (vi) therein. However department rejected the claim by reference to Clauses 4.3.5 of the Export and Import Policy for 2002-07 issued by the Government of India. Clauses 4.3.5 is extracted hereunder for easy reference:- "Applicability of 4.3.5. Normally the exports made under the Drawback DEPB Scheme shall not be entitled for drawback. However, the additional customs duty/excise duty paid in cash on inputs under DEPB shall be adjusted as Cenvat Credit or Duty Drawback as per rules framed by the Department of Revenue. In cases, where the additional customs duty is adjusted from DEPB, no benefit of CENVAT/Drawback shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a prescribed rate based on orders issued by the Commerce Ministry. Even though exporters and transferees of DEPB credits are allowed to import goods and clear the same without payment of customs duty or additional customs duty under Section 3 of the Customs Tariff Act they get the benefit only by notification 34/97 dated 7-4-1997 by which exemption is granted from payment of customs duty and additional customs duty on condition of debit of equivalent amount under the credits available in the DEPB. In other words the case of the respondents is that the adjustment of duty credit in pass book is not payment of duty and so much so CENVAT credit is not available for the additional customs duty which the appellants have not paid but claimed ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it for additional customs duty payable under Section 3 of the Customs Tariff Act but claimed as exempt by the importer under Notification 34/97 by adjusting credit available in pass book issued under the DEPB scheme. In fact it is clear from the existing policy as originally issued and after amendment that cenvat credit will be available for additional customs duty payable under Section 3 of the Customs Tariff Act only if it is paid in cash. Even though there is logic in the argument of the appellants that adjustment of duty against credit in pass book should be treated as payment in cash. Such a scheme is not visualized in the cenvat credit rules even though DEPB scheme was in force when the said rules were made. In fact, the DEPB credit w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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