2007 (12) TMI 40 - AT - Customs

Tribunal overturns denial of CENVAT credit, imposes penalty. Appellants entitled to credit under Notification No. 89/05-Cus.

The Tribunal allowed the appeal, overturning the Commissioner's decision to deny CENVAT credit of CVD and Education Cess amounting to over Rs. 1.5 Crores ... Whether the importer was entitled to take CENVAT credit of the amount debited in DEPB towards payment of CVD and Education Cess – it was found that document contains all the requisite entries relating to debits made in DEPB towards payment of CVD on the imported goods, such as particulars of DEPB licenses etc. - particulars were duly verified by the proper officer of customs and certified by him – B/E is documents specified u/r 9(1) to avail credit so credit available Issues:1. Denial of CENVAT credit of CVD and Education Cess2. Imposition of penalty3. Interpretation of Notification No. 89/05-Cus.4. Entitlement to avail drawback or CENVAT credit of CVD5. Compliance with specific Rules for CENVAT creditAnalysis:Issue 1: Denial of CENVAT credit of CVD and Education CessThe ld. Commissioner denied CENVAT credit of CVD and Education Cess amounting to over Rs. 1.5 Crores to the appellants and imposed a penalty of Rs. 10 lakhs. The dispute pertained to the period from December 2005 to September 2006, involving imports under Notification No. 89/05-Cus. The key question was whether the importer was entitled to take CENVAT credit of the amount debited in DEPB towards payment of CVD and Education Cess. The ld. Commissioner held that such credit was impermissible without specific Rules support.Issue 2: Imposition of PenaltyIn addition to denying the CENVAT credit, the ld. Commissioner imposed a penalty of Rs. 10 lakhs on the appellants. This penalty was a consequential action based on the denial of credit and non-compliance with the Rules as per the ld. Commissioner's interpretation.Issue 3: Interpretation of Notification No. 89/05-Cus.The case involved interpreting Notification No. 89/05-Cus., dated 4-10-2005, which granted concessions for payment of BCD and CVD on specified goods subject to conditions. The notification explicitly allowed importers to avail drawback or CENVAT credit of CVD debited in DEPB, as per condition No. (vi). The question arose regarding the applicability and compliance with this notification in the context of the appellants' imports.Issue 4: Entitlement to Avail Drawback or CENVAT credit of CVDThe Tribunal referred to a previous judgment, Final Order No. 962/07, where a similar issue was considered for the same assessee. In that case, the Tribunal ruled in favor of the assessee, emphasizing that the benefit of the relevant notification could not be denied for imports cleared on payment of duties through debits in DEPB licenses issued after a specific date. The Tribunal highlighted the importance of complying with the conditions specified in the notification for availing CENVAT credit.Issue 5: Compliance with Specific Rules for CENVAT CreditThe Tribunal scrutinized the documents, particularly the Bills of Entry, to determine the appellants' entitlement to CENVAT credit. It was established that the requisite entries related to debits made in DEPB for payment of CVD were present in the Bills of Entry, duly verified and certified by the customs officer. The Tribunal concluded that the appellants were entitled to the CENVAT credit based on the documents submitted, rejecting the contention that the credit was taken without the necessary documentation.In conclusion, the Tribunal set aside the impugned order and allowed the appeal based on the substantive issue's resolution in favor of the appellants, aligning with the previous judgment's decision.