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TMI Blog2023 (11) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... same in generation of steam / electricity which in turn was used in relation to manufacture of their final products. From 1/3/2011, steam coal attracts central excise duty at the rate of 5% advalorem vide Notification no.2/2011 CE dated 1/3/2011. However, concessional rate of 1% adv. also was available under Notification no.1/2011 - CE dated 1/3/2011 (Sl. No.28) subject to the condition that CENVAT credit of Central Excise duty paid on inputs and service tax paid on inputs services should not be availed by the appellant. Further, vide Notification no.3/2011 - CE (NT dated 1/3/2011, a proviso was inserted as clause (i) of Sub Rule (1) of Rule 3 of CENVAT credit Rules 2004 providing that CENVAT credit of the duty of excise paid on any goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Notification 12/2012 - Cus. dated 17/3/2012 as amended by Notification 12/2013 Cus. dated 1/3/2013, and availed credit of the same. 3. The department was of the view that in terms of Rule 3 of CCR 2004, CVD of 2% paid on imported steam coal is not eligible for CENVAT credit. Details of the CENVAT credit availed by the appellant was collected by the department and the present Show Cause Notice has been issued proposing to recover the alleged wrongly availed credit along with interest and for imposing penalties. 4. It is explained by the Ld. Counsel that Rule 3 of CCR 2004 does not restrict availment of CENVAT credit of CVD of 2% paid on steam coal imported and subjected to CVD assessment under the Notification 12/2012 Cus. dated 17/3/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The bar to take cenvat credit is only when the benefit of exemption specified at Sl.No.67 and 128 under Notification No.12/2012-CE dt. 17.3.2012 is availed. The CCR 2004 does not impose any bar or restriction in availing credit when the benefit of exemption is availed under the Notification No.12/2012-Cus. dt. 17.3.2012. The issue stands decided in the decision of Hindustan Zinc Ltd. (supra). The relevant 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 67 and 128 of Excise Notification No. 12/2012, dated 17-3-2012. Admittedly, the notification relied upon by the department for denying the impugned benefit to the appellant is Customs Notification No. 12/2012, dated 17-3-2012. The restriction of Rule 3 is not applicable to the said notification. Above all, the Hon'ble Supreme Court in the case of SRF Ltd. v. CC Chennai [2015 (318) E.L.T. 607 (S.C.)] 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 adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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