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TMI Blog2021 (10) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to the manufacture of final products. With effect from 1.3.2011, the steam coal was levied with Central Excise duty @ 5% ad valorem vide Notification No.2/2011-CE dt. 1.3.2011. However, concessional rate @ 1% ad valorem was available for steam coal as per Notification No.1/2011-CE dt. 1.3.2011 (Sl.No.28), subject to conditions that such concessional rate of duty shall not apply to goods in respect of which Central Excise duty on inputs or Service Tax on input services has been taken under the provisions of Cenvat Credit Rules, 2004. The appellants paid 2% CVD on the imported coal and availed credit of the said CVD. The department was of the view that in terms of Rule 3 of CCR 2004, such credit is not eligible. SCN was issued pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957); (v) the National Calamity Contingent duty leviable under section 136 of the Finance Act, 2001 (14 of 2001); (vi) the Education Cess on excisable goods leviable under section 91 read with section 93 of the Finance (No. 2) Act, 2004 (23 of 2004); (via) the Secondary and Higher Education Cess on excisable goods leviable under section 136 read with section 138 of the Finance Act, 2007 (22 of 2007); (vii) the additional duty leviable under section 3 of the Customs Tariff Act, equivalent to the duty of excise specified under clauses (i), (ii), (iii), (iv), (v), (vi) and (via):‛ 4. The department alleges that in terms of Rule 3 (1) (i) to (vii) of CCR 2004, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Many manufactures are importing steam coal on payment of duties. As per Customs Notification No. 12/2012-Cus.they are availing concessional CVD @ 2%. Audit is of the view that since CVD has been paid @ 2% on imported coal, the credit under Cenvat Credit Rules, is not available. Audit is taking a view that CVD in lieu of Excise duty and if 2% duty has been paid on imports the credit is not admissible because a manufacturer who is procuring coal domestically where excise duty has been paid @ 2%, the credit is not available. Board has issued a circular No.41/2013-Cus. dated 21.10.2013 where it has been clarified that 2% of CVD is "general applied" rate and therefore it is industry's view that credit of CVD is available as per rule 3(1) (v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant paragraphs of said decision are reproduced as under : "6. After hearing both the parties and perusing the record, we are of the opinion as follows : It is admitted that the appellants have imported coal consequent thereto they have paid 1%/2% on CVD in addition to Basic customs duty. The CVD has been paid at the said exempted rate taking the benefit of Sl. No. 123 of Customs Notification No. 12/2012-Cus., dated 17-3-2012. It is apparent from the order in challenge that Department has denied the payment of CVD on exempted rate and the availment of Cenvat credit thereupon relying upon the S. No. 67 of Excise Notification No. 12/2012, dated 17-3-2012. 7. Perusal of both these notifications reveal that the Customs notification is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] has held that Excise Notification No. 12/2012 is applicable only in respect of any digged or manufactured coal and not in respect of imported coal. The import whereof is allowed to have exempted rate of CVD vide Customs Notification No. 12/2012-Cus. 9. In view of the entire above discussion, we are of the firm opinion that the adjudicating authority has committed a legal error while denying the benefit of reduced CVD on imported coal while placing reliance upon the Excise notification for manufacture of coal. Order is therefore, held not sustainable and accordingly, is hereby set aside. Resultantly, the appeal stands allowed." 11. Following the said decision, we are of the considered opinion that the demand cannot sustain. The impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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