TMI Blog2008 (10) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... Amount demanded 1. E/569/2005 M/s. Binani Zinc Ltd. v. CCE OIO No. 13/2005-CE dt. 24-3-2005 Duty : Rs. 54,39,383/-Penalty : Rs. 5,00,000/- 2. E/233/2006 M/s. Merchem Ltd. v. CCE C (Appeals), Kochi OIA No. 26/2006-CE dt. 20-1-2006 Duty : Rs. 4,02,139/- 3. E/234/2006 M/s. Merchem Ltd. v. CCE C(Appeals), Kochi OIA No. 25/2006-CE dt. 20-1-2006 Duty : Rs. 1,84,736/- 2. Shri A.K.J. Nambiar, the learned Advocate, appeared on behalf of the appellants and Shri K. Sambi Reddi, the learned Departmental Representative, for the Revenue. 3. We heard both sides. 4. In all these cases, the appellants imported certain items on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous documents and he urged that the payment of CVD through Cenvat credit is also a payment of duty and in terms of the Cenvat Credit Rules, they are entitled to take Cenvat credit of the duty paid irrespective of the fact whether it is paid by cash or by credit. In other words, he emphasized that debiting through DEPB is also a payment of duty and once the duty is paid, the appellants are entitled for the credit. 4.2. The Larger Bench of the CESTAT, in the case of Essar Steel Ltd. v. CCE, Visakhapatnam - 2004 (173) E.L.T. 239 (Tri. - LB), has held that when the appellant is availing of a Notification and paying the CVD through debit, they would not be entitled for Cenvat credit. This decision is squarely against them although the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the DEPB Pass Book and availment of Cenvat credit of the duty so paid. 4.4. He also stated that the very fact that the Foreign Policy and the Customs Notification have been amended shows that the clarification or the amendment should be given retrospective effect. He argued very forcibly on this point. 5. On the other hand, the learned Departmental representative stated that during the relevant period, the Policy of the Government was not to allow the importers to take credit of the CVD debited through DEPB and he, therefore, defended stoutly the impugned orders and requested the Bench to uphold the same. 6. On a very careful consideration of the issue, we find that during the relevant period, in the Foreign Policy, there was an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome reason or other, the Government did not want to give the benefit of availment of Cenvat of CVD duty debited through DEPB. Hence, this is very clear from para 4.3.5 of the Policy. Later only, that crucial sentence had been deleted. So, in our view, the Policy change cannot have retrospective effect. We find that all the orders are legal and proper. As the matter is one of interpretation and since the appellants were having some favourable order in the Polyhose India Pvt. Ltd. Case (cited supra), penalty is not warranted. Hence, the penalty imposed in the Order-in-Original is set aside. However, the duty confirmation is upheld. Thus, we allow partially the appeal No. E/569/2005 and we reject the other two appeals namely E/233 234/2006. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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