Cenvat credit denial failed where refund conditions under Notification 102/2007 were not proved and imports predated its operation.

Cenvat credit of additional customs duty could not be denied on the basis of Notification No. 102/2007-Customs where the relevant imports pre-dated the notification and the refund conditions were not shown to have been satisfied. The Board's circular limited the refund scheme to cases where 4% CVD was paid on or after 14-09-2007, and the required invoice endorsement that the goods were not cenvatable was also absent. On that footing, the assumption that the importer had claimed refund was insufficient to disallow credit, and the denial of credit and connected orders were unsustainable.

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Issues: Whether the appellant was entitled to avail Cenvat credit of additional duty of customs when the imported goods were covered by Notification No. 102/2007-Customs dated 14-09-2007 and the refund of the duty by the importer was not established.

Analysis: The credit dispute turned on whether the importer could have claimed refund under Notification No. 102/2007-Customs. The relevant imports were made before the notification came into existence, and the Board's circular clarified that the refund scheme applied only to cases where 4% CVD was paid on or after 14-09-2007. The notification also operated subject to conditions, including endorsement on the sale invoice that the goods were not cenvatable. Since the notification was not in force during the relevant period and the required endorsement was absent, the basis for denying credit was not made out.

Conclusion: The appellant was entitled to Cenvat credit of the additional duty of customs; the denial of credit and the connected orders were unsustainable.

Ratio Decidendi: Where a refund-based denial of Cenvat credit rests on a notification that was not in force during the relevant period and the statutory refund conditions are not shown to have been satisfied, the credit cannot be denied on the assumption that the importer claimed refund.

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