TMI Blog2019 (5) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... had occasion to analyze the issue of the credit availed on Excise Duty paid on indigenous capital goods before the amendment was brought forth to Rule 3(1) by adding the proviso. In the said decision, the Tribunal had held that the Board Circular clarifies with regard to the eligibility of credit on the CVD paid on imported capital goods. Thus, the credit availed for the balance 50% in the subsequent period is in order - appeal allowed - decided in favor of appellant. - Excise Appeal No. 41951 of 2018 - FINAL ORDER NO. 40765/2019 - Dated:- 6-5-2019 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) Shri. M. Karthikeyan, Advocate for the Appellant Shri. L. Nandakumar, Authorized Representative for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier Order-in-Original No. 45/2014 dated 30.09.2014. Subsequently, it was noticed that in May 2014, they had taken the balance credit of 50% to the tune of ₹ 15,65,931/- on imported capital goods. It appeared that they had contravened the provisions of Rule 3(1) of the CCR, 2004 for which a Show Cause Notice was issued proposing to demand the said amount along with interest and also for imposing penalties. After due process of law, the Original Authority confirmed the demand, interest and imposed penalty of ₹ 1,60,000/- under Rule 15(1) of CCR, 2004. In appeal, the Commissioner (Appeals) vide impugned order dated 31.03.2018 upheld the same. Hence, this appeal. 3.1 On behalf of the appellant, Ld. Advocate Shri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar No. 185/19/96/CX dated 19.03.1996 and submitted that the said issue as to whether the assessee is eligible for credit on the amount equal to the Excise Duty paid on indigenous and imported capital goods while de-bonding was considered by the Department in the said Circular. It was then clarified that the CVD component of the duty discharged on imported capital goods is to be allowed as MODVAT Credit. This Board Circular has so far not been withdrawn or rescinded. Later, proviso to Rule 3(1) ibid was introduced as a clarification wherein it was stated that the amount equal to Central Excise Duty paid on capital goods at the time of de-bonding as per Notification No. 22/2003-CE is eligible for credit. Thus, the assessee would be eligible f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the proviso to Rule 3(1) ibid does not specifically mention Notification No. 52/2003-Cus, paragraph 8 of Notification No. 22/2003 makes it very much clear that for capital goods, the amount equal to the Excise Duty has to be paid at the time of de-bonding and with respect to all other goods (inputs/raw materials), the Excise Duty has to be discharged by the assessee at the time of de-bonding. For this reason also, even though the proviso does not mention Notification No. 52/2003-Cus., Rule 3(1) permits availing CENVAT Credit of the Central Excise Duty as well as CVD paid. 3.5 He therefore prayed that the appeal may be allowed. 4. Ld. AR Shri. L. Nandakumar appearing on behalf of the respondent supported the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants have enclosed the copies of the official correspondences stating that (page 53 and 51 of the paper book) all the TR-6 challans in question were submitted to the department even before availing the cenvat credit. Since production of challans and eligibility thereof for cenvat credit on capital goods is a question of fact, which needs to be verified, the same is liable to be remanded to the adjudicating authority for verification. 7. Thus, the 50% credit availed by the appellant on the very same capital goods has been allowed by the Tribunal. The Department has not been able to apprise the Bench that any appeal has been filed by the Department against such order. Thus, the decision of the Division Bench of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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