TaxTMI 
TaxTMI 
2020 (3) TMI 483
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....s that the correct value of the goods is the value which was finally assessed, therefore, the respondent were not entitle for the cenvat credit paid in excess on the basis of provisionally assessed bills of entry. The department also contended that the amount of duty paid on the provisionally assessed bills of entry is deposit and not the duty actually payable as per the finally assessed bill of entry, therefore, CVD paid as per provisionally assessed bill of entry is not admissible for cenvat credit to the appellant. The adjudicating authority dropped the proceeding of the show cause notice. Being aggrieved by the impugned order Revenue filed the present appeal. 2. Shri. Deepak kumar, Learned Special Counsel appearing on behalf of the Revenue reiterates the grounds of appeal. He submits that the appellant availed the cenvat credit of CVD based on provisionally assessed bill of entry. Since the payment under provisionally assessed bills of entry is provisional, therefore, the same cannot be considered the same as duty but it is considered as deposit, therefore, the appellant were entitle to cenvat credit only on the CVD amount which has been determined in the finally assessed bil....
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.... entry is a deposit and not a duty. The provisionally assessed bills of entry is also valid document for availing the cenvat credit, for the reason that under Rule 9 of Cenvat Credit Rules only bill of entry is prescribed on the basis of which the payment of customs duty was made, therefore, bill of entry whether it is provisional of finally assessed, the Cenvat Credit is admissible. There is no bar in the law to restrict the Cenvat Credit on the CVD paid on the basis of provisionally assessed bills of entry. Therefore, merely because the Cenvat Credit was taken on provisionally assessed bills of entry, there is no reason to deny the Cenvat Credit. It is a settled law that even if any duty or excess duty paid which is otherwise not payable, and the recipient and Cenvat Credit cannot be disputed. On this issue the Tribunal has passed the various judgments which are reproduced below: 5.1 In the case of Kesarwani Zarda Bhandar(Supra) the Tribunal passed the following order paragraph-5. 5. I have carefully considered the submissions made by both the sides. I find that there is no dispute that the appellant have paid the service tax on GTA service, which was performed for transport....
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....he bar of unjust enrichment will also not apply in the present case. The appellants have taken credit of the tax paid by them; therefore the same cannot be said to be passed on to the customers." In these circumstances we hold that the Cenvat Credit taken by the appellant is nothing but refund of the Service Tax paid by them on the services on which they were not required to pay Service Tax. 8. With these observations, we hold that the appellant is entitled to take the Cenvat Credit in the facts and circumstances of the case. Accordingly, the impugned order is set aside and the appeal is allowed with consequential relief, if any". (ii) Sarda Energy & Minerals Ltd. (supra) has held as under- "2. As per facts on record, the appellant had availed GTA services during the month of December, 2004. However, as a recipient of such services, they were liable to pay Service Tax w.e.f. 1-1-2005. The appellant paid the Service Tax in respect of the said services availed during the month of December, 2004 and took the credit of the same. The Revenue entertained a view that the services availed in December, 2004 were not taxable and as such, there is no liability on the part of the appel....
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....taken by me above finds support from the decision of the Hon'ble High Court of Punjab and Haryana in the case of M/s. V.G. Steel Industry v. C.C.E., 2011-TIOL-338-HC-P&H = 2011 (271) E.L.T. 508 (P & H), where it has been held that when duty was paid in excess of what was payable, CENVAT credit cannot be denied unless the excess duty paid has been refunded. From the above judgments, it is clear that even if the service tax is not required to be paid and if the assessee pay the service tax, the same can be taken as Cenvat Credit. In the present case, since on the GTA service their Allahabad unit has already paid the service tax, the appellant was not required to pay the service tax once again therefore the service tax paid by the appellant is admissible as Cenvat Credit to the appellant. Following the ratio of the above judgment, I am of the considered view that the appellant is entitled for the Cenvat Credit. The impuged order is set aside and the appeal is allowed. 5.2 In the case of Sterlite Industries (I) Ltd.(Supra) on the similar issue following order was passed:- "5. It has not been contested by the appellants that Service tax was not payable in respect of rail transpor....
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....nd the payment of duty was also duly accepted. We find absolutely no substance in the attempt of the learned Commissioner to convert a part of the duty so paid into "deposit of duty". There is no legal basis for such presumption. The rules entitled the recipient manufacturer to avail of the benefit of the duty paid by the supplier manufacturer. A quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officers in charge of the recipient unit [2000 (120) E.L.T. 379(T) = 2000 (38) R.L.T. (179)]." 5. The above interpretation made by CESTAT was upheld by Hon'ble Supreme Court in their judgment dated 07.08.2008 reported at 2008 (229) ELT-485 (S.C.). A similar view has been taken by Hon'ble High Court of Mumbai in the case of CCE Pune vs. Ajinkya Enterprises [2012-TIOL- 578-HC-MUM-CX.]. In view of the settled law it is held that appellant has correctly taken the CENVAT credit on the inputs received in the absence of any action taken by the revenue at the supplier's end." 5.4 The similar issue the Tribunal Mumbai Bench in the case of MDS Switchgear Ltd.(Supra) express the similar view which is as under:- 6.We ....