2016 (8) TMI 294

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....nufacture of Inorganic Pigments falling under Chapter No.32 of Central Excise Tariff Act, 1985. Duty free import authorization(DFIA) licences dt.26.06.2006 and 12.05.2006 were issued by Joint DGFT in favour of M/s Ciba Speciality Chemicals India Ltd Mumbai, and the Appellant as Loan Licensee for manufacture of excisable goods like Chrome Pigments in accordance with Foreign Trade Policy 2004-2009 meant for export. On scrutiny of ER-1 returns for the months of May 2006 to February, 2007, it was alleged that the Appellant during the said period had wrongly availed CENVAT Credit amounting to Rs. 45,73,230.00 which was not admissible to them in terms of Para 4.4.7 of Foreign Trade Policy(2004-09) and Notification No.40/2006-Cus, dt.01.05.2006. C....

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....ned Commissioner (Appeals) has not addressed the said issue. It is his further submission that another basis on which the Show Cause Notice was issued, namely, violation of Condition (v) of Notification No.40/2006-Cus, dt.01.05.2006 in as much as Credit under CENVAT Credit Rules in respect of materials imported/procured against the said authorization could not be availed, so as to become eligible to avail the benefit of said notification, is no more sustainable in law. It is contention that the said condition has been retrospectively amended w.e.f. 01.05.2006 vide Clause No.93 of Finance Act, 2009.   It is his further contention that even the respective provision of Foreign Trade Policy(2004-09) has been amended w.e.f. 19.04.2007 ....

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.... loan licensee is eligible to avail CENVAT Credit on the duty paid inputs procured indigenously and used in the manufacture of finished goods meant to be exported by the principal manufacturer, against DFIA. 6. The Revenue proposed to deny the CENVAT Credit referring to Para 4.4.7 of Foreign Trade Policy (2004-2009), and the Condition (v) of exemption Notification No.40/2006-Cus, which reads as below:- Para 4.4.7 of Foreign Trade Policy 2004-2009: "No CENVAT Credit facility shall be available for inputs either imported or procured indigenously against the authorization." Condition (v) of exemption Notification No.40/2006-Cus: "that the export obligation as specified in the said authorization (both in value and qua....

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....e Policy(2004-09) has been amended w.e.f. 19.04.2007 removing the restriction of non-availment of CENVAT Credit. We find from the impugned order of the learned Commissioner (Appeals) that at the time of passing of the said order, the retrospective amendment was not available before him. Besides, except referring to the interim Trade Notices issued by DGFT, detailed analysis of relevant facts and the issues raised by the Appellant in their grounds of Appeal had not been addressed by the Ld. Commissioner(Appeals) leading to a cryptic Order. Therefore, in the interest of justice, the case needs to be remanded to the learned Commissioner (Appeals) to consider the arguments on record in detail and also the retrospective amendment to the notifica....