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2016 (4) TMI 190 - CESTAT MUMBAI

2016 (4) TMI 190 - CESTAT MUMBAI - 2016 (344) E.L.T. 395 (Tri. - Mumbai) - Cenvat Credit on the goods imported under Duty Free Import Authorization (DFIA) Scheme - denial of claim for violation of condition provided in para (v) of Notification No. 40/2006-Cus - Held that:- In the show cause notice the credit was proposed to be denied for violation of condition provided in para (v) of Notification No. 40/2006-Cus, whereas the adjudication order and Commissioner (Appeals) order decided the matter .....

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ara (v) of Notification No. 40/2006-Cus, which has been validated for the period from 1 st May 2006 to 18 th February 2009, the appellant are entitled for the Cenvat Credit. Thus the appellants' availment of Cenvat Credit in respect of SAD paid on the import made under DFIA becomes legal and correct - Decided in favour of assessee - Appeal No. E/288/2011 - A/85879/16/SMB - Dated:- 2-2-2016 - Ramesh Nair, Member (J) For the Appellant : Shri Prasad Paranjape, Adv For the Respondent : Shri V K Shas .....

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at para (v) of the Notification No. 40/2006-Customs dt. 1.5.2006 described that for exports under DFIA', the facility of Cenvat Credit under Cenvat Credit Rules, 2004 in respect of materials imported/procured against the said authorization cannot be availed . In the adjudication, the credit was disallowed referring to para (iiia) of Notification No. 40/2006 dt. 1.5.2006. Aggrieved by the adjudication order, the appellant filed appeal before the Commissioner (Appeals), who maintained the Orde .....

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uthority stand vitiated for the reason that the adjudication order travelled beyond the scope of show cause notice. As regard the allegation in the show cause notice with reference to para (v) of the notification. He submits that vide Section 92 of the Finance Act, 2009 are retrospective amendment Notification No. 40/2006 was made and the amendment has been validated for the period 1 st May 2006 to 18 th February 2009. The condition provided under para (v) of the notification was substituted and .....

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ssions made by both the sides and perusal of the record, I find that in the show cause notice the credit was proposed to be denied for violation of condition provided in para (v) of Notification No. 40/2006-Cus, whereas the adjudication order and Commissioner (Appeals) order decided the matter referring to para (iiia) of the Notification. It is not permitted in law to adjudicate the matter in the show cause notice on the ground, which is not flowing from the show cause notice. Hence, it is not p .....

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E), dated the 1st May, 2006, issued under subsection (1) of section 25 of the Customs Act shall stand amended and shall be deemed to have been amended in the manner as specified in column (3) of the Second Schedule, on and from the corresponding date mentioned in column (4) of that Schedule, retrospectively, and accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, any action taken or anything done or purported to have been ta .....

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said notification under sub-section (1) of section 25 of the Customs Act, retrospectively, at all material times. (3) Recovery shall be made of the amount which has not been paid but which would have been paid as if the amendment made by sub-section (1) had been in force at all material times from the day on which the Finance (No. 2) Bill, 2009 receives the assent of the President. Explanation.- For the removal of doubts, it is hereby declared that no act or omission on the part of any person sh .....

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