TMI Blog2023 (10) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) observes that though the appellants have applied the formula given under Rule 3(7)(a) of the CENVAT Credit Rule, taking into account Tariff Rate of BCD is not correct; CENVAT Credit is to be calculated by taking into account the basic Customs duty leviable and charged. We find that the appellants rely upon Tribunal s orders, by this bench in M/S SUN PHARMA LABORATORIES LTD VERSUS. CCE ST, JAMMU KASHMIR [ 2018 (12) TMI 1983 - CESTAT CHANDIGARH] and CESTAT Ahmedabad in SUN PHARMACEUTICAL INDUSTRIES LTD VERSUS C.C.E. S.T. SURAT-II [ 2023 (4) TMI 710 - CESTAT AHMEDABAD] . For the purpose of allowing the Cenvat credit, both the additional duties have to be taken into account and restricting the benefit to only one additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit. In view of the factual position, it appears that the contention raised by the appellants is not discussed in the above cited cases. The answer to the issue raised in the impugned case is answered by the facts of the case alone and is not a legal issue to be decided. Extended period of Limitation - HELD THAT:- The Department has not brought anything on record to substantiate the allegation of suppression etc. to enable invocation of extended period. Commissioner (Appeals) set aside the penalty and has also not given any specific findings on the invocation of the extended period. In the facts and circumstances of the case, the extended period cannot be invoked. The appeal is allowed on limitation by holding that the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e into account Basic Customs Duty leviable and charged whereas the appellants have taken into account Tariff Rate. (ii) when the supplier EOUs did not avail the benefit of Notification No. 23/2003 dated 31.03.2003, the formula given under Rule 3(7)(a) of CENVAT Credit Rule is not applicable; Jurisdictional Deputy Commissioner should verify such cases (iii) the appellant s contention that the formula should be used as prescribed prior to 05.12.2008 and after 05.12.2008, whereas the Department applied same formula for the entire period; he directed that the Jurisdictional Deputy Commissioner may recalculate the duty accordingly. (iv) penalty is not imposable. (v) Rule 3 (7)(a) of CENVAT Credit Rules 2004, does not bar/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. She relies on the following: FINAL ORDER No. A/10872-10873/2023 DATED 13.04.2023-CESTAT AHMEDABAD. FINAL ORDER NO. A/63649-63649/2018-EX [DB] DATED 06.12.2018-CESTAT CHANDIGARH. SRI VENKATESHWARA PRECISION COMPONENTS-2010 (258) E.L.T. 553 (Tri. - Chennai). M/S META COPPER ALLOYS LTD AND OTHERS- 2013-TIOL-1285-CESTAT-MUM. METACLAD INDUSTRIES-2013 (289) E.L.T. 381 (Tri. - Mumbai) CHEMPHAR DRUGS LINIMENTS- 1989 (40) E.L.T. 276 (S.C.) EMCURE PHARMACEUTICALS LTD.- 2016 (342) E.L.T. 172 (Bom.) TAMIL NADU PETRO PRODUCTS LTD.- 2017 (353) E.L.T. 454 (Mad.) ZYG PHARMA PVT. LTD.-2017 (358) E.L.T. 101 (M.P.) 5. Shri Aneesh Dewan, learned Authorised Representative f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valorem rates, in percent, of basic customs duty and additional duty of customs leviable on the inputs or the capital goods respectively and X denotes the assessable value The expression additional duty of customs leviable is not qualified by any other term. Now there are two additional duties of customs leviable under Section 3 of the Customs Tariff Act under sub-section (1), an additional duty of customs is levied which is equal to the excise duty levied on like articles produced in India. Under sub-section (5), another additional duty of customs is levied at a rate not exceeding four per cent. of the value of the imported articles so as to counterbalance the sales tax/value added tax or any other charges on a like articles on its s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as well as the appellant are not exactly on the issue. In the case of Micropure Parental Pvt. Ltd.(supra), it was held that it is very clear that the term BCD in the second proviso implies the basic customs duty applicable on the goods by a normal importer from abroad. In the case of Venkateshwara Precision Components (supra), it was held that with effect from 01.03.2005, if the inputs were imported, the manufacture would be eligible for CENVAT credit of duties paid under Section 3(1) and Section 3(5) of the Customs Tariff Act, 1975; under the circumstances, there is no warrant to treat the terms CVD referred to in Rule 3(7) of the CENVAT Credit Rules as applicable only to additional duty leviable under Section 3(1) of the Customs Tar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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