TMI Blog2018 (4) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... ns granted absolutely. Exemption N/N. 22/2003 which is subject matter of dispute covering the inputs and capital goods. The said notification, admittedly, contain various conditions including bond etc. to be fulfilled by the manufacturer supplier of such goods to the EOU. As such, it is apparent that such elaborate conditions when stipulated, not followed by the manufacturer supplier will not attract the provision of Section 5A (1A). In any case, the point is even if it is admitted for argument that the supplier had violated the said provision, the appellant as recipient of duty paid goods cannot be put to adverse finding. A distinction is sought to be made on the ground that the N/N. 44/2001 was issued under Rule 19 of CER 2002 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Rule 5 of Cenvat Credit Rules, 2004 will arise. Accordingly, all the impugned orders held against the appellant on their claim for credit as well as consequential benefit. Ld. Counsel appearing for the appellant mainly submitted on the following lines: (a) The appellant paid duty/ tax on the goods and services received by them. They have not violated any provision of Cenvat Credit Rules, 2004. This much has been admitted in the impugned order (para 13). (b) The exemption to be claimed on the goods covered under Notification No. 22/2003-CE dated 31.03.2003 is subject to various conditions which are to be fulfilled by the manufacturer supplier of all the input/ capital goods. Section 5A(1A) of the Central Excise Act, 1944 has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding entitlement of the appellant to avail credit on inputs, capital goods and services, we note that neither the show cause notice nor the impugned orders mentioned the provision under which the said credit was not available to the appellant. In fact, in para 13 of the order dated 18.04.2017 the Commissioner admits that no charge of any violation of Cenvat Credit Rules, 2004 has been made in the proceedings. As such, the present dispute is not with reference to the credit availed which is not otherwise available in terms of Cenvat Credit Rules, 2004. The only basis on which the credit was sought to be denied is that the duty itself should not have been paid by the manufacturer supplier of inputs/ capital goods. The provision of Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I -2014 (309) ELT 354 (Tri. Del.). The Tribunal examining the application of Notification No. 44/2001-CE (NT) to an exporter who received the goods which were covered by the said Notification held as below: 9. As is seen from the above Circular, the same relates to the refund of the terminal excise duty and is nowhere concerned about the availment of the Cenvat credit of duty paid on the inputs by the input supplier. As such, we find that the Commissioner reliance on the said Circular was not called for. 10. Apart from above, we also note that this is well settled law that a manufacturer is entitled to avail the credit of duty paid by the input manufacturer and the assessments at his end cannot be reopened on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave our finding as above. 9. In such situation, we note that the impugned order relying on the decision of Bombay High Court in Sandoz Pvt. Limited is not sustainable. As already noted that the said decision is with reference to refund to be granted by DGFT on terminal excise duty in terms of relevant EXIM Policy. Such procedure was withdrawn by the DGFT. This has no application to decide the eligibility or otherwise of the appellant to cenvat credit in terms of Cenvat Credit Rules, 2004. 10. As we have held on the main issue regarding eligibility of the appellant for cenvat credit in their favour, consequently, proceedings for demand or for rejection of refunds arising on such credit shall also held in appellant s favour in line with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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