9911796707
TMI Blog2022 (12) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Diesel, Liquefied Petroleum Gas (LPG), etc. Appellant had imported capital goods which were cleared under Notification No. 54/2003-Cus. dated 01.04.2003 by debiting the countervailing duty (CVD) amounting to Rs. 18,37,92,521/-. The payments of these duties are made by way of debits in SFIS (Service from India Scrip). Appellant availed the Cenvat Credit of such CVD in terms of Rule 3 of Cenvat Credit Rules, 2004. The department objected to the availment of credit and issued show cause notice alleging that since the Capital Goods had been cleared under the said Notification, the goods were exempted goods and as a consequence, the Cenvat Credit of CVD debited in the SFIS scrip was not admissible. Further, it was also alleged that since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the material time. The admissibility of the credit, therefore, has to be determined in terms of the legal provisions existing as on date of accrual of the Credit. He placed reliance on following decisions. (i) Spenta International vs. CCE- 2007(216) ELT 133(T-LB) (ii) CCE vs. Surya Roshni - 2003(155) ELT 481 4. He also submits that the Circular relied upon by the Revenue are equally inapplicable inasmuch as the mere non mention about cenvat credit being available of duty debited in the SFIS scrip does not imply that such credit were not allowed. 5. He further submits that department has failed to appreciate the settled law that once the appropriate duty is paid by debit to the SFIS scrips on the import of capital goods, they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebiting duty scrip issued under these schemes. However the same was not mentioned in Notification No. 54/2003 and 92/2005 related to Served from India Scrip (SFIS) as the Government's policy was against extending the facility of Cenvat Credit under this scheme. Therefore, same was not mentioned in these two Notifications. Accordingly, Board has issued customs Notification No. 97/2005 to extend the facility of Cenvat Credit in respect of customs Notification No. 53/2004 related to old version of target plus scheme stating that under Notification No. 53/2003 the facility of Cenvat Credit would be available, which had not been mentioned initially when the said Notification No. 53/2003 was issued. 6. He also submits that Notification No. 97/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant was wrong since the government's intention was never to extend facility of the Cenvat Credit related to export of service, right from the inception of this scheme in 2003. There was nothing new in this para except to reiterate the earlier stand of the Government that the facility of Cenvat credit would not be available to serve from India Scheme. So, there is no question of applicability of this para prospectively, as wrongly understood by the Appellant. 8. He further submits, as per the Rule 4(1) of Cenvat Credit Rules, 2004, the Appellant should have taken cenvat credit immediately on receipts of the goods. However, in the present case the Appellant informed in March 2011 that they want to take cenvat credit against the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at para 3.12.1 (2007-08 to 2008-09) and para 3.17.6 (2009-10 onwards) was made in this context which reads as under: "CENVAT/ Drawback : 3.17.6 / 3.12.1: Additional Customs Duty / Excise Duty paid in cash or through debit under Duty Credit scrip shall be adjusted as Cenvat Credit or Duty Drawback as per DoR rules, except under SFIS" However, the appellant claimed that as per the above para of FTP, the credit of duty paid by debit to SFIS scrip was not allowed implies that before the introduction of the said para, it was allowed because if it was not allowed before that also, then there was no need to insert the said para which only has prospective applicability. Whereas revenue contended that this interpretation of the appellant was wro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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