TMI Blog2024 (1) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... which had clarified that notification no.12/2012-CE is applicable only in respect of indigenously manufactured coal and not in respect of imported coal. Even if the importer wants to avail the exemption notification no.12/2012-CE for payment of CVD, the same will not be available to the importer and therefore in the case of import, the notification no.12/2012-CE is not relevant. The decision of the High Court of Gujarat in the case of Lonsenkiri Chemicals Industries [ 2018 (9) TMI 1439 - GUJARAT HIGH COURT ] has also been consistently found to be distinguishable for the reason, to quote from the decision of the Principal Bench of the Tribunal in Hindustan Zinc [ 2020 (10) TMI 1032 - CESTAT NEW DELHI ], where it was held that The appellant therein had availed the benefit of serial numbers 67 and 128 of the Central Excise Notification dated March 17, 2012. It is for this reason that the High Court held that because of the condition set out in proviso (b) of rule 3(1)(i) of the CENVAT Credit Rules that the appellant would not be entitled to avail CENVAT credit. It is found from the aforesaid decisions that a consistent view has been taken by the various Benches on the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said amount along with interest and penalty under Rule 15 of the Rules, 2004. The Adjudicating Authority vide order dated 31.08.2020 confirmed the show cause notice. The appeal filed by the respondents was allowed by the Commissioner (Appeals) by the impugned order. Being aggrieved, the department has filed the present appeal before this Tribunal. 4. Having heard both the parties and perused the records, we are of the view that there is no merit in the appeal filed by the department as the controversy stands settled in view of the orders passed on the earlier occasions. 5. The case of the department is that since the buyers of coal from domestic manufacturers of steam coal were availing exemption, either under notification no.01/2011-CE dated 01.03.2011 or under notification number 12/2012-Cus. dated 17.03.2012 were not eligible for credit, the buyers of imported coal should also not be eligible for the said credit so as to ensure level playing field with the domestic manufacturers and relied on the decision of the High Court of Gujarat in Lonsenkiri Chemicals Industries Vs. CCE, Cus. S.T. - 2019 (365) ELT 22 (Gujarat). 6. The respondents have filed cross objections by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by availing notification no.12/2012-CE which is not the case here. Reference was made to the decision of the Supreme Court in SRF Limited Vs. CC, Chennai 2015 (318) ELT 607 (SC) which had clarified that notification no.12/2012-CE is applicable only in respect of indigenously manufactured coal and not in respect of imported coal. Even if the importer wants to avail the exemption notification no.12/2012-CE for payment of CVD, the same will not be available to the importer and therefore in the case of import, the notification no.12/2012-CE is not relevant. Similar view has been expressed by the Tribunal in the following cases : (i) CCE ST, Surat-1 Vs. M/s Aarti Industries Ltd., 2019 (3) TMI 240 - CESTAT, (ii) Jaypee Sidhi Cement Plant Vs. CGST 2019 (369) ELT 1673, (iii) M/s. Hindustan Zinc Ltd. Vs. The Commissioner, CGST Commissionerate, Udaipur Final Order No.50855-50856/2020 dated 28.09.2020, (iv) Shyam Steel Industries Ltd Vs. Commissioner of CGST and C. EX, Bolpur 2022 (382) ELT 366 - which has been affirmed by the High Court of Calcutta, rejecting the appeal preferred by the department. 9. The applicability of Rule 3(1)(i) and 3(1)(vii) of the Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the view that since CVD has been paid @ 2% on imported coal, the credit under Cenvat Credit Rules, is not available. Audit is taking a view that CVD in lieu of Excise duty and if 2% duty has been paid on imports the credit is not admissible because a manufacturer who is procuring coal domestically where excise duty has been paid @ 2%, the credit is not available. Board has issued a circular No.41/2013-Cus. dated 21.10.2013 where it has been clarified that 2% of CVD is general applied rate and therefore it is industry's view that credit of CVD is available as per rule 3(1) (vii) of CENVAT credit rules. Please clarify. Reply: Since the subject goods were levied at reduced rate of 2% CVD on their importation in terms of section 3 of Customs Tariff Act, 1975 read with Notification issued therein i.e under Notification No. 12/2012-Cus. dated March 17, 2013 (and not under Notification No. 1/2011 CE) which was not excluded from the purview of Rule 3 of CENVAT credit rules, 2004, it appears that the CENVAT credit of CVD paid on imported coal (i.e. 2% adv.) under Notification No. 12/2012- Customs dated 17.03.2013 is eligible for credit. 10. The decision of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would be allowed to take the CENVAT credit on the duty of excise specified in the First Schedule to the Excise Tariff Act, leviable under the Excise Act. Sub rule (1) rule 3 which gives the concession of availment of CENVAT credit of the duty paid, also uses the same expression duty of excise as is used in the proviso which restricts or limits the right of availment of such facility under certain circumstances. The expression duty of excise used in clause (i) of subrule (1) of rule 3 and the above noted proviso to the said rule, must receive same interpretation. The term duty of excise cannot have different connotations for the purpose of subrule (1) of rule 3 and for the purpose of proviso to the rule 3. Thus, if we accept the contention of the counsel for the assessee that the countervailing duty would not be included in the expression duty of excise for the purpose of the said rule, the assessee's very foundation of claiming the benefit of CENVAT credit would disappear. 11. We find from the aforesaid decisions that a consistent view has been taken by the various Benches on the provisions of Rule 3(1) and the distinction between the customs notification and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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