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TMI Blog2019 (10) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... eared on payment of central excise duty during the period 2005-06 by utilizing Cenvat Credit availed on countervailing duty amount as debited in the DFCE certificates. It is the case of the department that the assessee could adjust Cenvat Credit only w.e.f. 17.11.2005 when the amendment was made to the aforesaid notification no. 53/2003 vide notification no. 97/2005-cus dated 17.11.2005. In the course of adjudication of the impugned show cause notice dated 24.12.2007 issued to the assessee, the Ld. Commissioner confirmed the demand for recovery of Cenvat Credit of Rs. 42,01,397/- and Rs. 84,027/- (education cess) relating to four Bill of Entries filed prior to 17.11.2005 alongwith interest and equivalent penalty under Rule 15(1) of the CENVAT Credit Rules, 2004. Against the said demand, the assessee has preferred Appeal bearing no. E-193/2009. Vide the aforesaid adjudication order, the Ld. Commissioner dropped the proposal in the show cause notice for denial of cenvat credit in respect of Bill of Entries filed in February 2006, i.e. after 17.11.2005 i.e. the date on which amendment was made in the notification no. 53/2003 referred supra. He also observed that the assessee was reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for the Revenue submitted that the assessee has violated the conditions of Notification no. 53/2005 by availing credit prior to 17.11.2005. He further referred to the grounds taken in the revenue's appeal that the assessee is not entitled to the benefit of Notification no. 53/2005-cus for the reason that names and addresses of the supporting manufactures were not specified on the licence / certificate against which the impugned goods were imported. He also stated that since the goods were manufactured by job workers and that the assessee did not have manufacturing facility, the cenvat credit was not available even after 17.11.2005. He accordingly prayed that the entire demand proposed in the show cause notice be confirmed against the assessee. 6. Heard both sides and perused the appeal records. 7. We find that the issue pertaining to denial of cenvat credit for the period prior to 17.11.2005 i.e. prior to issuance of Notification no. 97/2005 stands squarely decided by this Tribunal in assessee's own case vide Final Order no. 77250/2018 dated 18.07.2018, the relevant portion of which is extracted below:- "4. We find that on 01.04.2003, the Central Government, through the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich provided that additional customs duty / excise duty paid in cash or through debit under the DFCE entitlement certificate, would be adjusted as Cenvat credit as per rules framed by the Department of Revenue. The Department of Revenue, by its circular dated 13,10.2006 clarified that Additional Customs Duties paid through debit in certificate issued under DFCE can be availed of as Cenvat credit. The relevant exim policy has a force of law and Adjudicating Authority should have considered the same before holding that Cenvat credit has to be availed and utilized on this strength of notification issued by CBEC. We also observe that the appellant has acted on the basis of and in terms of the notification issued by the Central Government through Ministry of Commerce and the appellant should not be penalized for the delay in issuing the customs notification in line or reconfirming and/or complementing the Notification issued by the DGFT. The CBEC was expected to re-confirm and/or complement issued by the DGFT simultaneously. However, the Customs notification came to be issued on 17.11.2005. In the mean time, the appellant paid additional customs duty through debit through DGFT and avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntative that privileges are to be strictly interpreted does not find much merit as the notifications impugned in this proceeding are procedural and not substantive. These notifications provide for an alternative mode of discharging duty liability after regular assessment in accordance with law. 5. The principle to be determined is the impact of availment of credit when duty liability is discharged by recourse to alternative mode. That there is a duty liability is not in dispute; it is the manner of payment of the duty that, in the context of entitlement to Cenvat credit, that is objected to. Cenvat Credit Rules, 2004 does not make such distinction and credit should be admissible even in the absence of a clarificatory insertion in a customs notification. That the said insertion is clarificatory should be important from the context of the placement of what is otherwise an aspect of domestic taxation in an instrument of a tax statute concerned with cross-border movement of commodities. Customs Act, 1962 does not purport to be dealt with Cenvat credit. 6. Respondent is an exporter and is, thereby, entitled to a refund of taxes/duties on all inputs and it is the superfluous activi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 20/2006- Cus. dated21-7-2006 (relied upon by the adjudicating authority in the Order-in-Original) to submit that only CVD is allowed to be debited on the DFCE scheme and not SAD. As regard Notification No. 54/2003- Cus. as amended, it is his submission that the said Notification clearly indicate that the SAD leviable under subsection (1) of Section 3 of the Customs Tariff Act is only allowed to be debited under DFCE scheme. He would reiterate the findings of the adjudicating authority. 6. We have considered the submissions made by both sides and perused the records. The issue involved in this case is regarding the eligibility to avail Cenvat credit of the amount of SAD paid as debit in DFCE licence.It is undisputed that as per Rule 3 of the Cenvat Credit Rules, any duty paid under Section 3 of the Customs Tariff Act is eligible to an assessee as Cenvat credit.This point is not contested. It is also undisputed that the appellant in this case has paid the SAD by a debit in the DFCE licence and there was enough credit in the said licence issued under DFCE scheme, for debit the SAD leviable on the goods. The adjudicating authority's findings for denying the Cenvat credit is as un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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