2009 (3) TMI 464

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....Act that was debited in the pass book issued under the DEPB Scheme. 2. We have heard senior counsel appearing for the appellant and the counsel appearing for the respondents. 3. Appellants imported raw materials and they avoided payment of additional customs duty payable under Section 3 of the Customs Tariff Act by getting debits in the pass book issued under the DEPB scheme. Even though they took cenvat credit with respect to the debits made in pass book on additional customs duty, the department ordered reversal of for the reason that without payment of additional customs duty under Section 3 in cash, appellants are not entitled to cenvat credit under the Cenvat Credit Rules, 2002. The contention of the appellants is that Rule 33(1)(vi....

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....d. v. Commissioner of C.Ex., Vishakhapatnam [2004 (173) E.L.T. 239 (Tri. - LB)] wherein they have held that Cenvat credit is not available to importers of raw materials who avail exemption under Notification 34/07-Cus., under which exemption is granted on customs duty and additional customs duty payable under Section 3 of the Customs Tariff Act on condition of debiting the equal amounts in the duty credit available in the pass book issued under the DEPB scheme. Counsel for the respondents have also relied on Clause 4.3.2 of the Exim Policy which states that the holder of DEPB shall have an option to pay additional customs duty if any in cash as well. According to the respondents different credit given in pass book issued under the DEPB sche....

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....ty paid through debit under DEPB to be adjusted as Cenvat credit duty drawback. The said position was clarified vide Circular No. 59/2004-Cus., dated 21-10-2004 (2004 (173) E.L.T. T9). It implies that the goods cleared by debits through DEPBs are not to be treated as exempted but duty paid." Counsel for the respondent submitted that by virtue of Section 38A of the Central Excise Act clarification which has the effect of amendment applies only prospectively from the date of its issue which is 21-7-2006 and since appellant's imports are prior to that date, they are not entitled to benefit of the clarification. 5. After hearing both sides and after going through the relevant provisions of the Act, Rules and notifications we are of the view t....