2008 (10) TMI 534

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....unt demanded 1. E/569/2005 M/s. Binani Zinc Ltd. v. CCE OIO No. 13/2005-CE dt. 24-3-2005 Duty : Rs. 54,39,383/-Penalty : Rs. 5,00,000/- 2. E/233/2006 M/s. Merchem Ltd. v. CCE&C (Appeals), Kochi OIA No. 26/2006-CE dt. 20-1-2006 Duty : Rs. 4,02,139/- 3. E/234/2006 M/s. Merchem Ltd. v. CCE&C(Appeals), Kochi OIA No. 25/2006-CE dt. 20-1-2006 Duty : Rs. 1,84,736/- 2. Shri A.K.J. Nambiar, the learned Advocate, appeared on behalf of the appellants and Shri K. Sambi Reddi, the learned Departmental Representative, for the Revenue. 3. We heard both sides. 4. In all these cases, the appellants imported certain items on payment of Customs duty and also the Additional Duty of Customs. The imports were made under the DEPB ....

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....and in terms of the Cenvat Credit Rules, they are entitled to take Cenvat credit of the duty paid irrespective of the fact whether it is paid by cash or by credit. In other words, he emphasized that debiting through DEPB is also a payment of duty and once the duty is paid, the appellants are entitled for the credit. 4.2. The Larger Bench of the CESTAT, in the case of Essar Steel Ltd. v. CCE, Visakhapatnam - 2004 (173) E.L.T. 239 (Tri. - LB), has held that when the appellant is availing of a Notification and paying the CVD through debit, they would not be entitled for Cenvat credit. This decision is squarely against them although the appellants urged that there was another decision viz. Polyhose India Pvt. Ltd. v. CCE, Chennai - 2003 (....

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....lso stated that the very fact that the Foreign Policy and the Customs Notification have been amended shows that the clarification or the amendment should be given retrospective effect. He argued very forcibly on this point. 5. On the other hand, the learned Departmental representative stated that during the relevant period, the Policy of the Government was not to allow the importers to take credit of the CVD debited through DEPB and he, therefore, defended stoutly the impugned orders and requested the Bench to uphold the same. 6. On a very careful consideration of the issue, we find that during the relevant period, in the Foreign Policy, there was an express provision to disallow taking of Cenvat credit of the CVD paid through d....