2017 (1) TMI 921

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....ted under Notification No. 34/97-Cus dated 07.04.97 and 45/2002-Cus dated 22.04.2002. The appellant had availed credit of Rs. 45,26,087/- on various items during March, 2003 to December, 2005 imported by way of adjustment of CVD in DEPB and not by cash payment of CVD availing the exemption under Notification No. 34/97-Cus dated 07.04.97 and 45/2002-cus dated 22.04.2002. The provisions of para 4.3.5 of Export Import Policy 2002-2007 state that in case of CVD paid by way of adjustment from DEPB no benefit of Cenvat / Drawback will be available. The Bill of Entry submitted also did not contain the proof of payment of CVD as well as the Appellant had also not disclosed the availment of credit of CVD not paid in cash but adjusted against the DEP....

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....onsequently, he submits that the allegation of suppression made against the appellant is not sustainable and hence the Show Cause Notice, which has been issued on 31.01.2008 covering the period March, 2003 to December, 2005 is completely time barred. (ii) The relevant Customs Notification No. 96/2004-Cus has been issued 17.09.2004 permitting the availment of Cenvat Credit for Bills of Entry on which CVD has been paid making use of DEPB scrip. However, the Show Cause Notice has demanded reversal of such Cenvat credit upto December, 2005. On the ground that the CVD in those cases have been paid making use of DEPB scrips issued partially under old Foreign Trade Policy. In this regard, he submits that issue stand settled in their favour by t....

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....ication did not permit so and secondly the same was sought to be denied wherever CVD was paid even after 17.9.2004 if DEPB scrips used were issued under the earlier FTP (2000-2007). 6. Under the Foreign Trade Policy 2002-07 itself, the issue whether Cenvat credit can be permitted, when CVD is paid using the DEPB was very much disputed by different benches of the Tribunal and held differently, which necessitated the issue to be referred to larger bench which decided, in the case of Essar Steel Ltd (Supra) that Cenvat credit will not be allowable on the strength of such documents. This larger bench decision was issued while Final Order dated 16.08.2004. From the facts that the dispute has been going on for fairly a long time, which came to....

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....0 (Commissioner of Central Excise v. M/s. Neel Kanth Rubber Mills) referred to the EXIM Policy which was amended by the Notifications dated 28^th January 2004 and 17^th September, 2004 which entitled an importer to avail Cenvat credit of additional Customs duty against the amount debited in the DEPB scrips. It was noted by the High Court that there was no condition in the said notifications that the debits made in the DEPB issued under a particular FTP alone would be eligible for CENVAT credit and that debits in a DEPB issued under a previous FTP would not b eligible for credit. 7. Ms. Sonia Sharma, learned counsel for the Appellant states, on instructions, that to the best of the knowledge of the appellant, no appeal has been filed as o....