TMI Blog2020 (3) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... it, for the reason that under Rule 9 of Cenvat Credit Rules only bill of entry is prescribed on the basis of which the payment of customs duty was made, therefore, bill of entry whether it is provisional of finally assessed, the Cenvat Credit is admissible. There is no bar in the law to restrict the Cenvat Credit on the CVD paid on the basis of provisionally assessed bills of entry. Therefore, merely because the Cenvat Credit was taken on provisionally assessed bills of entry, there is no reason to deny the Cenvat Credit. It is a settled law that even if any duty or excess duty paid which is otherwise not payable, and the recipient and Cenvat Credit cannot be disputed. It is settled in various decisions that even though certain amount of Excise duty/service tax not payable as per law but the manufacturer/service provider paid the duty /service tax, at the recipient and Cenvat Credit cannot be denied only on the ground that the same was not payable by the Manufacturer/Service provider - On the same analogy in the present case also even though as per the final assessment there was excess payment of CVD which was otherwise not payable, the Cenvat Credit on the said excess paid CVD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. Since the payment under provisionally assessed bills of entry is provisional, therefore, the same cannot be considered the same as duty but it is considered as deposit, therefore, the appellant were entitle to cenvat credit only on the CVD amount which has been determined in the finally assessed bill of entry. The adjudicating authority has erred in dropping the proceeding. 3. On the first date that is on 21.06.2019 the matter was heard in detail when the respondent was represented by Shri. V. Shridharan, Learned senior Counsel along with Shri. Anand Nainawati and shri. Ishan Bhatt, advocates, however for some clarification the matter was relisted and it was finally heard on 06.11.2019. 4. The respondent takes support of the adjudication order. They submits that the provisional assessment bill of entry is also with authority of law as provided that under Section 18 of the Customs Act, 1962, therefore, the duty paid at the time of provisional assessment of bill of entry cannot be said to be deposit but it is a payment of duty in terms of Section 18. For this reason the cenvat credit of CVD paid on provisional assessment is admissible. They alternatively submit that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced below: 5.1 In the case of Kesarwani Zarda Bhandar(Supra) the Tribunal passed the following order paragraph-5. 5. I have carefully considered the submissions made by both the sides. I find that there is no dispute that the appellant have paid the service tax on GTA service, which was performed for transportation of goods from their Allahabad unit to Kalher depot. Therefore in my view the service tax paid in respect of certain service even if service was undertaken other than the appellants factory, the credit can be availed at any one place. In the present case, the credit was admittedly taken by the appellant and the same was not taken by any other unit. Without prejudice to the above, I also found that as per the judgments relied upon by the Ld. Counsel, even if it is accepted that on the part of the appellant no service exist, the payment of service tax made by the appellant is the service tax paid in excess, therefore the credit of such excess paid service tax is allowable. The decisions relied upon by the Ld. Counsel are reproduced below: (i) Baja Alliianze General Industries Co. Ltd. (Supra) has held as under- 7.5 From the above discussion, it is very m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were liable to pay Service Tax w.e.f. 1-1-2005. The appellant paid the Service Tax in respect of the said services availed during the month of December, 2004 and took the credit of the same. The Revenue entertained a view that the services availed in December, 2004 were not taxable and as such, there is no liability on the part of the appellant to pay the Service Tax. As a result, the credit of Service Tax availed by them is not admissible to them. 5. I agree with the learned Advocate that it is the credit of Service Tax paid which is available to the assessee and not credit of Service Tax payable. Admittedly the appellants have paid the Service Tax on the GTA services availed during December, 2004 though they were not liable to pay the same. Having paid the Service Tax, they are entitled to the credit of the same. It is to be noted that no objection was raised by the Revenue at the time of payment of Service Tax by the appellant . (iii) Sterlite Industries (I) Ltd. (supra) has held as under- 2. During March 2006 to April 2006, the appellants entered into a contract with the transport agencies to carry copper anodes from Tuticorin to Silvasa. For this period, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above judgment, I am of the considered view that the appellant is entitled for the Cenvat Credit. The impuged order is set aside and the appeal is allowed. 5.2 In the case of Sterlite Industries (I) Ltd.(Supra) on the similar issue following order was passed:- 5. It has not been contested by the appellants that Service tax was not payable in respect of rail transport. The Department has also proceeded on the basis that rail transport service was not taxable prior to 1.05.2006. Hence, the tax amount of ₹ 2,25,702/- which was paid by the appellants was not at all due to the exchequer. However, the amount has been paid by the appellants mistakenly believing that the same was payable and they have also taken the credit of the same under the bonafide belief that such credit was available. Considering the fact that the appellants have taken only credit of tax paid by them which in the first instance was not payable, there can be no demand against them as no revenue has been lost to the exchequer by merely taking credit of the amount which in the first place was not recoverable from them. Hence, ends of justice would be met if the demand is set aside along with the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CCE Pune vs. Ajinkya Enterprises [2012-TIOL- 578-HC-MUM-CX.]. In view of the settled law it is held that appellant has correctly taken the CENVAT credit on the inputs received in the absence of any action taken by the revenue at the supplier s end. 5.4 The similar issue the Tribunal Mumbai Bench in the case of MDS Switchgear Ltd.(Supra) express the similar view which is as under:- 6.We have carefully considered the submission made before us. 7.Reasons given by the appellants for the alleged inflation of the value of the intermediate goods are logical. What was required of the Commissioner was to examine the quantum of the loading of the assessable value by the Modvat credit on the earlier inputs. That exercise has nowhere been done. If the Department was of the opinion that the value of the final product was depressed, then they could have charged the Jalgaon unit with under-invoicing of their product. That has also not been done. The valuation as given by the Sinnar unit was duly approved by the Department and the payment of duty was also duly accepted. We find absolutely no substance in the attempt of the learned Commissioner to convert a part of the duty so p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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