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TMI Blog2024 (1) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest and equivalent penalty. 2. The issue involved in the present appeal is whether the respondent is entitle for credit in respect of CVD paid under notification no.12/2012-Cus. dated 17.03.2012, on import of coal. The issue is no longer res integra and has been decided in favour of the assessee and against the revenue and the same has been consistently followed by different Benches of the Tribunal and affirmed by High Court of Calcutta in Commissioner of CGST & C. EX, Bolpur Commissionerate Vs. Shyam Steel Industries Ltd. - 2022 (382) ELT 329 (Cal). 3. Briefly stated, the respondents are engaged in the manufacture of different varieties of Cement and Clinkers falling under chapter heading 25 of the Central Excise Tariff. The responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 way of reply. Referring to clause (vii) of Rule 3(1), the learned counsel for the respondent submitted that credit of CVD additional duty paid on imported goods is admissible with credit and distinguished the case law relied on by the department in the case of Lonsenkiri Chemicals Industries (supra). 7. Since the issue relates to the provisions of Rule 3 of the Rules, the same are quoted below : "Rule 3 - A manufacturer or pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vadodara - 2018 (9) TMI 159-CESTAT interpreted Rule 3 to say that even if any duty is paid by availing exemption notification no.12/2012-CE dated 17.03.2012, the same will not be available as Cenvat credit for the user of the goods. Whereas the appellant have imported coal and CVD of 2% is leviable in terms of Customs notification no. 12/2012 - Cus. dated 17.03.2012. There is no restriction provided in Rule 3 as regards duty paid under Customs notification. This restriction is applicable only in case of indigenous goods on which the excise duty at 2% was paid 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) whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, Rule 3(1)(vii) provides that a provider of output service shall be allowed to take credit of the additional duty leviable under section 3 of the Customs Tariff Act, equivalent to the duty of excise specified under clauses (i), (ii), (iii), (iv), (v), (vi) and (via). 14. The Commissioner has mixed up Rule 3(1)(i) and Rule 3(1)(vii) of rule 3 of the CENVAT Credit Rules. It is for this reason that the conditions specified in Rule 3(1)(i) have also been imported into Rule 3 (1)(vii) of the CENVAT Credit Rules. In the first instance, Hindustan Zinc had not paid duty of excise specified in the First Schedule of the Excise Tariff Act, nor it had availed the benefit of the Central Excise Notification dated March 1, 2011 or that specified i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable. 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. 12/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is this view which the assessee has challenged before us. ******** 3. It is not in dispute that the assessee has availed of the benefit of exemption notification 1 of 2011 and also the benefits under Sr. 67 and 128 of exemption notification 12 of 2012. In that view of the matter, the above noted proviso of the Rules, would disentitle the assessee from claiming CENVAT credit. Counsel for the assessee however submitted that this proviso refers to CENVAT credit of "such duty of excise". In the present case, what the assessee has paid was the countervailing duty. The same may have been computed in terms of excise duty payable on local manufacturers, nevertheless, the same cannot be treated as duty of excise perse. He however candidly ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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