TMI Blog2010 (1) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... ties to the appellant that they have to pay such amount in cash - If the appellant has paid the 4% SAD as leviable under Section 3 of the Customs Tariff Act,. the eligibility to avail credit is allowed by Cenvat Credit Rules and also under the relevant notifications - order denying the Cenvat credit to the appellant is incorrect and is liable to be set aside. - E/154 and 279/2008 - 447-448/2010 - Dated:- 21-1-2010 - S/Shri M.V. Ravindran, Member (J) and P. Karthikeyan, Member (T) REPRESENTED BY: Shri G. Shivadass, Advocate, for the Appellant. Shri M. Ravi Rajendran, SDR, for the Respondent. [Order per: M.V. Ravindran, Member (J)]. - These two appeals are filed against the Order-in-Original No. 17/2007-C.Ex. dated 19-12-2007. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 3 of the Customs Tariff Act. The adjudicating authority after considering the written and oral submissions made by the appellant concluded that the appellants do not have a case and coming to such conclusion, he confirmed the demand and directed them to pay interest. He did not impose any penalty. Aggrieved by such an order, the appellant is before us. 3. In the Revenue's appeal, Revenue is aggrieved by the Order-in- Original on the non-imposition of penalty by the adjudicating authority on the appellant despite holding that the appellant had availed ineligible Cenvat credit. Ld. Counsel appearing on behalf of the assessee submits as under :- (I) Excise Authorities having jurisdiction over the Appellants' Factory cannot que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheme) would be adjusted as Cenvat Credit or duty drawback. (f) The Board, in the above Circular, specifically noted that no further amendment hi Rule 3 of the Cenvat Credit Rules, 2004 was required as it provided for availment of credit of additional duty paid under Section 3 of the Customs Tariff Act, 1975 which would evidently cover every kind of additional duty levied under Section 3 ibid. (g) In this regard the Appellants rely on the decision of the Tribunal in the case of Seshasayee Paper and Boards Ltd. v. CCE., Salem reported hi 2007 (217) E.L.T. 562 (Tri. - Chennai) wherein it was held that credit of CVD paid by debiting in the DEPB scrip cannot be denied on ground that duty was not paid in cash as it would amount to flouting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DFCE/Target Plus shall be adjusted as Cenvat credit or duty drawback as per rules framed by the Department of Revenue. Such a benefit was under the erst while EXIM Policy, 2002-07. (b) For case of reference relevant paras from both the Policies are extracted below. Para 4.3.5 of the Export Import Policy 2002-07 (as on 1-4-2004) Normally, the exports made under the DEPB Scheme shall not be entitled for drawback. However, the additional customs duty/excise paid in cash on inputs under the DEPB shall be adjusted as Cenvat credit or duty drawback as per rules framed by Department of Revenue. Para 4.35 of the Foreign Trade Policy 2004 09 Normally the exports made under the DEPB Scheme shall not be entitled for drawback However the add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff Act against the amount debited in the said certificate" (g) In spite of the above amendment, till 2006, the opening paragraph of the above notification referred to additional duty leviable under Section 30 of the Customs Tariff Act, 1975. (h) By an amendment brought about vide Notification No. 117/2006-Customs Act, 1962 dated 19-12-2006 exemption from payment of all the additional duties leviable under Section 3 of the Customs Tariff Act, 1975 was granted. (i) The Cenvat Credit Rules, 2004 as amended however permitted the availment of credit of duty paid under Section 3 of the Customs Tariff Act without prescribing the mode of payment as a qualification. 4.2 It is his submission that the benefit of notification cannot be challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the Cenvat credit is as under "11. The assessee has imported goods under Notification No. 53/2003-Cus. dated 1-4-2003 and the SAD payable has been debited against the DFCE certificates. In view of the clarification given as above, the special CVD or SAD at the rate of 4% could not be debited against the DFCE scrips. They were required to pay the special CVD/SAD in cash and thereafter, were entitled for Cenvat credit. Inasmuch as, the assessee has not paid SAD in cash on the imported goods, they are not entitled to take Cenvat credit." It can be seen from the above reproduced portion of the Order-in-Original that the adjudicating authority has come to the conclusion that the appellant could not have debited the SAD under DFCE licence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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