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TMI Blog2023 (5) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... o 96/2004 dated 17.09.2004 and similar such Notification No. 89/2005 - Cus dated 04.10.2005. The said Notification No 96/2004 - Cus dated 17.9.2004 purports to opertionalise DEPB Scheme covered by Para 4.3 of the FTP 2004-2009. The said Notification has nothing to do with the erstwhile FTP 2002-07 vide Explanation (i) appended to the said notification. In fact the erstwhile FTP 2002-07 was abandoned midway and it was replaced by the new FTP 2004-09 w.e.f. 31.08.2004. Para 4.3.5 of the FTP 2004-09 expressly provided that CVD paid in cash or through debit under DEPB shall be adjusted as cenvat credit. In fact the erstwhile FTP 2002-07 also came to be amended by DGFT Notification dated 28.01.2004 to provide for allowing cenvat credit of the duty paid through debit under DEPB. However, the appellant were issued various show cause notices all identically worded. The learned Commissioner has dropped the 7 show cause notices whereas remaining 4 show cause notices covering the period from January 2005 to March 2007 ( except for the period July 2005 to February 2006) are confirmed for denial of cenvat credit on the ground that the appellant have not submitted any additional evidence which s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the imported goods were duly assessed by the Proper Officer under Notification No.96/2004. There is till date no demand for short payment of Customs Duty paid through debit in DEPB raised by the Customs authorities. Consequently, when the CVD paid through debit under DEPB is accepted and assessed by the Customs Proper Officer, it is a payment of duty in cash as clarified by the Board in its Circular No. 26/2007-Cus dated 20.7.2007. As per Rule 3 of the Cenvat Credit Rules, 2004, any duty paid under Section 3 of the Customs Tariff Act is eligible to the importer as Cenvat Credit. Therefore, denial of the Cenvat Credit is not legal and proper on this ground also. He placed reliance on the following judgments:- * Seshasayeep Paper and Boards Ltd.- 2007 (217) ELT 562 (T) * Aurobindo Pharma Ltd.- 2010 (261) ELT 594 (T) * Tecumesh Products India P. Ltd.- 2010 (256) ELT 276 (T) 2.4 He also submits that as per following 3 judgments the Hon'ble High Court and CESTAT have negatived the Revenue's contention that since licence is issued under previous policy and since the credit was not admissible on CVD paid through debit in DEPB, cenvat credit is not allowed. The Hon'ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit in respect of additional customs duty paid either in cash or through debit under DEPB therefore, in view of the statutory provision the appellant are entitled for the cenvat credit. 4.1 The Adjudicating Authority contended that the dispute by the revenue that it is not clear that the license were issued under old EXIM Policy of 2000- 07 or thereafter, therefore, the cenvat credit cannot be allowed. In this regard, we find that admittedly the import clearances were made during the policy of FTP 2004-09 and under Notification No. 96/2004-Cus therefore, irrespective of that fact that the licences were issued prior to introduction of new policy 2004-09 or thereafter it will not make adverse effect about admissibility of the cenvat credit, so long all the clearances were made after the FTP 2004-09 came into effect. This issue has been considered in the following judgments:- * CCE Vs. Neel Kanth Rubber Mills.- 2010 (254) ELT 203 (P&H) "4. In pursuance of the show cause notice, the assessee filed the reply, inter alia, explaining that as per the amended EXIM Policy, vide Notification dated 28-1-2004, the Cenvat credit was admissible to the assessee on the additional duty pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case was issued under the previous policy and during that period, the Cenvat credit was not admissible in CVD paid, otherwise than in cash, so, the assessee is not entitled to avail the Cenvat credit, is not only devoid of merit but misplaced as well, because the EXIM Policy amended, vide Notification dated 28-1-2004 and Notification No. 96 dated 17-9-2004, postulate that "an importer shall be entitled to avail the Cenvat credit of additional duty leviable under Section 3 of the Act against the amount debited in DEPB. There is no such condition in the indicated notifications that the debits made in DEPB, the licenses issued under the Foreign Trade Policy only would be eligible for credit and the debits made in DEPB issued under the previous policy will not be eligible for credit. It means, the assessee was entitled to claim the benefit in this relevant connection. 11. It is not a matter of dispute that the assessee fulfills all other conditions to avail the Cenvat credit. Once the Notification has been amended on 17-9-2004 to extend the benefit of availment of credit of CVD debited through DEPB account, in that eventuality, the revenue cannot deny the benefit of Cenvat c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit of additional customs duty against the amount debited in the DEPB scrips. It was noted by the High Court that there was no condition in the said notifications that the debits made in the DEPB issued under a particular FTP alone would be eligible for CENVAT credit and that debits in a DEPB issued under a previous FTP would not be eligible for credit. 7. Ms. Sonia Sharma, learned counsel for the Appellant states, on instructions, that to the best of the knowledge of the Appellant, no appeal has been filed as of date against the aforementioned order of the Punjab and Haryana High Court in Commissioner of Central Excise v. M/s. Neel Kanth Rubber Mills (supra) which decides the issue in favour of the Assessee and against the Department. 8. The Court finds that the said decision indeed covers the issue against the Department on all fours. The Appellant has not been to show any notification by which the benefit of CENVAT credit has been expressly denied where the payment of customs duty or additional customs duty is made using DEPB scrips issued in terms of the FTP 2002-07. 9. No substantial question of law arises for consideration by the Court. 10. The appeals are di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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