TMI Blog2023 (5) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... DEPB therefore, in view of the statutory provision the appellant are entitled for the cenvat credit. It is settled that even if the licences were issued under FTP 2000-07 then also the credit cannot be denied, so long the imports were made under notification no. 96/2004-Cus which is issued under FTP 2004-09. Moreover, in the present case, department could not establish that the licenses were issued under FTP 2000-07, for this reason also the proposal for denial of cenvat credit by the revenue is not sustainable. The appellant is entitled for cenvat credit - Appeal of assessee allowed. - Excise Appeal No. 11596 of 2018-DB with Excise Appeal No. 12270 of 2018-DB - Final Order No. A/ 11134 -11135/2023 - Dated:- 3-5-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Willingdon Christian, Advocate for the Appellant Shri S K Mathur, Special Counsel for the Respondent ORDER The issue involved is that whether CVD paid through DEPB Scrip under custom Notification No. 96/2004 dated 17.05.2004 is available as cenvat credit. The case of the department is that as per para 4.3.5 of Exim Policy where CVD is paid through DEPB Scrip no be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, the department cannot interpolate Para 4.3.5 of the EXIM policy 2002-2007 to deny the cenvat credit in sharp contrast with the express enabling Condition no. (vi) of the said Notification. In fact that old FTP 2002-2007 was not even in existence at the time of imports made after January, 2005 as the said old FTP 2002 -2007 was abolished w.e.f. 31.08.2004. 2.1 He further submits that when the customs have accepted and assessed the CVD payment through debit in DEPB under Notification No. 96/2004- CUS, the question of applying FTP 2002-07 does not arise because the said Notification No. 96/2004 CUS is applicable only to the DEPB Licences issued under FTP 2004-09 vide Explanation (i) appended to the said Notification. Condition No. (iii) of the said Notification requires the importer to produce the DEPB licence before the Proper Officer of Customs for making the debit entries in DEPB. 2.2 He further submits that even if one presumes that in spite of the Customs Proper Officer having admitted and assessed the imported goods under Notification No 96/2004- CUS the erstwhile FTP 2002-2007 will apply then also the said erstwhile FTP 2002-07 stood amended w.e.f 28.01.2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal. 4. We have carefully considered the submissions made by both the sides and perused the records. The issue to be decided is that whether the duty debit in DEPB script under customs notification no. 96/2004 dated 17.09.2004 is available as cenvat credit. We find that the period involved in the present case is January 2005 to December 2011 during such period notification no. 96/2004-Cus dated 17.09.2004 was prevailing. The relevant para (vi) of the notification reads as under:- vi. that the importer shall be entitled to avail the draw back or cenvat credit of additional duty leviable under Section 3 of the said Custom Tariff Act against the amount debited in the said Duty Entitlement Pass Book. From the above condition, it is explicitly clear that the importer shall be entitled to avail cenvat credit of additional duty against the amount debited in DEPB. It is undisputed that all the bills of entry have been assessed under Notification No. 96/2004-Cus dated 17.09.2004 therefore, CVD debited in the DEPB under the said notification is available for cenvat credit to the importer. Moreover, the para 4.3.5 of EXIM Policy 2004-09 as on 31.08.2004 reads as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngwith interest and imposed a penalty of Rs. 1 lac, vide order dated 21-2-2006 (Annexure A2). The perusal of the record would reveal that the Assistant Commissioner dropped the proceedings, initiated under the show cause notice and sanctioned the refund claim, vide order dated 31- 5-2006 (Annexure A2/1), the operative part of which is, reproduced as under :- 1. I drop the show cause notice proceedings initialed against the noticee vide C. No. V(30) D/NK/72/05/13876-77, dated 2-12-2005. 2. I sanction refund claim of Cenvat Credit of Rs. 1,55,599/- (Rs. 1,52,548/- CVD + Rs. 3,051/- Education Cess) to the noticee by way of credit in their Cenvat Credit account. 3. I sanction refund claim of Rs. 15,200/- by way of Cheque on account of interest deposited by the noticee on 20-8-2005. 6. Aggrieved by the order (Annexure A2), the assessee filed the appeal, which was accepted by the Commissioner (Appeals), vide order dated 9- 6-2006 (Annexure A3) and set aside the duty of demand and penalty. However, the appeal filed by the revenue against the order of Assistant Commissioner (Annexure A2/1), was rejected, vide order dated 1-11- 2007 (Annexure A3/1). 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd.- 2015 (325) ELT 840 (Del.):- 3. The Respondents imported raw materials by availing exemption under Notification No. 96/2004-Cus., dated 17th September, 2004. The customs duty as well as additional customs duty were paid using Duty Entitlement Pass Book (DEPB) scrips issued in terms of the 2002-07 Foreign Trade Policy (FTP). The Respondents availed of Cenvat credit for the additional customs duty paid through DEPB scrips. In terms of the Notification No. 34/97-Customs, dated 7th April, 1997 goods specified in Schedule I to the Customs Tariff Act, 1975 (CTA) imported would be exempted from payment of the whole of the duty of customs as well as additional duty subject to importer having DEPB with sufficient credit. 4 . Notification No. 96/2004-Cus. provided that the importer using the DEPB would be entitled to drawback or CENVAT credit of additional duty leviable under Section 3 of the CTA against the amount debited i the DEPB issued in terms of Para 4.3 or 7.9 of the FTP 2004-09. 5. The case of the Department was that the Assessee had paid the additional customs duty using the DEPB issued under the FTP of 2002-07 while the benefit of CENVAT credit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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