TMI Blog2017 (11) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) TMI 281 - PUNJAB & HARYANA HIGH COURT], where it was held that the EXIM Policy amended, vide Notification dated 28.1.2004 and Notification No.96 dated 17.9.2004, postulate that “an importer shall be entitled to avail the Cenvat credit of additional duty leviable under section 3 of the Act against the amount debited in DEPB. There is no such condition in the indicated notifications that the debits made in DEPB, the licenses issued under the Foreign Trade Policy only would be eligible for credit and the debits made in DEPB issued under the previous policy will not be eligible for credit. It means, the assessee was entitled to claim the benefit in this relevant connection - appeal allowed - decided in favor of appellant. - E/1284/2011-SM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant for disposal of present appeal and emanating from the record, are that the respondent-assessee M/s. Neel Kanth Rubber Mills (for short the assessee ) was manufacturer of T.R. Belting and Conveyor Belting and was availing the Cenvat credit of duty on inputs, under the Cenvat Credit Rules, 2002. During the course of audit of the records, it was noticed by the officers of the department that the assessee had imported certain raw material under the Duty Entitlement Pass Book (for brevity the DEPB ), on which additional duty of customs i.e. CVD had been debited from DEPB account and had not been paid in cash. 3. The revenue claimed that since the assessee wrongly availed the Cenvat credit, so, a show cause notice (Annexure A1) was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice proceedings initialed against the noticee vide C. No. V(30) D/NK/72/05/13876-77, dated 2-12-2005. 2. I sanction refund claim of Cenvat Credit of ₹ 1,55,599/- (Rs. 1,52,548/- CVD + ₹ 3,051/- Education Cess) to the noticee by way of credit in their Cenvat Credit account. 3. I sanction refund claim of ₹ 15,200/- by way of Cheque on account of interest deposited by the noticee on 20-8-2005. 6. Aggrieved by the order (Annexure A2), the assessee filed the appeal, which was accepted by the Commissioner (Appeals), vide order dated 9-6-2006 (Annexure A3) and set aside the duty of demand and penalty. However, the appeal filed by the revenue against the order of Assistant Commissioner (Annexure A2/1), was reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls all other conditions to avail the Cenvat credit. Once the Notification has been amended on 17-9-2004 to extend the benefit of availment of credit of CVD debited through DEPB account, in that eventuality, the revenue cannot deny the benefit of Cenvat credit to the assessee, in the obtaining circumstances of the case. We are of the considered opinion that the Adjudicating Authority has rightly dropped the proceedings and refunded the amount of Cenvat credit to the assessee, vide order (Annexure A2/1), which was upheld by the Commissioner (Appeals) as well as the Appellate Tribunal. 12. No other legal infirmity in the impugned order has been pointed out by the learned counsel for the revenue. 13. In the light of the aforesaid reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Notification No. 96/2004-Cus. provided that the importer using the DEPB would be entitled to drawback or CENVAT credit of additional duty leviable under Section 3 of the CTA against the amount debited i the DEPB issued in terms of Para 4.3 or 7.9 of the FTP 2004-09. 5. The case of the Department was that the Assessee had paid the additional customs duty using the DEPB issued under the FTP of 2002-07 while the benefit of CENVAT credit could be availed in terms of the Notification No. 96/2004-Cus. only when the payment of import duty or additional customs duty had been made using the DEPB issued under the FTP of 2004-09. 6. The Division Bench of Punjab and Haryana High Court in its order dated 22nd April, 2010 in CEA No. 37 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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