TaxTMI 
TaxTMI 
2020 (3) TMI 483
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....d finally. The case of the department is 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 bee....
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....f law. Therefore, it cannot be said that the payment made under provisionally assessed bills of 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 ....
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....he case of Nitco Tiles Ltd. v. CCE, Mumbai - 2007 (220) E.L.T. 827 (Tri. - Mum.), this Tribunal observed as under :- "Further, the 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....
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.... credit of the amount which in the first place not recoverable from them. Hence, ends of justice would be met if the demand is set aside along with the demand of interest and penalty. The view 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....
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....nal product was depressed, then they could have charged the Jalgaon unit with under-invoicing of their product. That has also not been done. The valuation as given by the Sinnar unit was duly approved by the Department and 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 re....
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.... the said excess paid CVD cannot be denied. The adjudicating authority has given a detailed finding. After considering all the legal provisions on the issue in hand which is reproduced below:- 6. On carefully going through the above findings of the adjudicating authority, we find that the adjudicating authority has given proper reasoning and correctly interpreted the various provision of Customs Valuation, provisional assessment and Cenvat Credit Rules. We do not find any infirmity in the finding given by the adjudicating authority. 7. As per our above discussion and finding support with the settled legal position, We find that the order passed by the adjudicating authority is just and proper. 8. Accordingly, we uphold the impugned order and dismiss the Revenue's appeal. Cross Objection also stands disposed of. (Pronounced in the open court on 12.03.2020) ============= Document 1 14. DISCUSSION AND FINDINGS: 14.1 I have carefully gone through the show cause notice and defence submissions made by the assessee at time of personal hearing. 14.2 It is alleged in the show cause notice that the assessee is importing raw material, i.e. Copper Concentrate (CTH-....
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....er they have filed Bills of Entry for home consumption with customs department for provisional assessment of duties. After provisional assessment of duties, duty is accordingly paid by them and the imported goods are transported to the factory for use in manufacture of finished goods. After receipt of the goods in the factory, they are availing Cenvat Credit of CVD and SAD paid by them on provisionally assessed value. Document 2 Further if the value of the copper concentrate is determined to be less than the value declared under provisional assessment, they are claiming refund of excess BCD (including cess) paid on the difference of value between provisional and final assessment in terms of Section 18(?)(a) of the Customs Act, 1962. It is also contended that they have not filed any refund claim for the difference of duty arises at the time of provisional assessiuent and after final assessment. For that they submitted Order-in-Original No.110/DC/SRT/Refund/2014 .lated 29.12.2014 passed by Deputy Commissioner against B/E No.F-04/13-14 dated 22.04.2013 for Rs.2835395/-. The aforementioned practice upon finalization of assessment i.e. filing for refun....
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....s as under: Document 3 "RULE 3. CENVAT credit. (1) A manufacturer or producer of final products or a [provider of output service] shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of- (i) (ii) the duty of excise specified in the First Schedule to the Excise Tariff Act, leviable under the Excise Act; the duty of excise specified in the Second Schedule to the Excise Tariff Act, leviable under the Excise Act; (iii) the additional duty of excise levable under section 3 of the Additional Duties of Excise (Textile and Textile Articles Act, 1978 (40 of 1978); (iv) the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Goods of Special Importance) Act. 1957 (58 of 1957); (v) (vi) the National Calamity Contingent, duty leviable under section 136 of the Finance Act, 2001 (14 of 2001); the Education Cess on excisable goods leviable under section 91 read with section 93 of the Finance (No.2) Act, 2004 (23 of 2004); (via) the Secondary and Higher Education Cess on excisable goods leviable under section 136 read with section 138 of the Finance Act, 2007 (22 of 2007); ....
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....ubts it is clarified that the manufacturer of the final products and the provider of outpur service shall be allowed CENVAT credit of additional duty leviable under section 3 of the Customs Tariff Act on goods falling under heading 9801 of the First Schedule to the Customs Tariff Act. (2) Notwithstanding anything contained in sub-rule (1), the manufacturer or producer of final products shall be allowed to take CENVAT credit of the duty paid on inputs lying in stock or in process or inputs contained in the final products lying in stock on the date on which any goods manufactured by the said manufacturer or producer cease to be exempted goods or any goods become excisable." Documents and accounts defined under Rule 9 of Ceuvat Credit Rules, 2004 is as under: "RULE 9. Documents and accounts. (1) The CENVAT credit shall be taken by the. manufacturer or the provider of oupu sa vice or input service distributor, as the case may be, on the basis of any of the following documents, namely:- (a) an invoice issued by- (i) (1) [a manufacturer or a service provider for clearance of-] inputs or capital goods from his factory or depot or fr....
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....cument 5 (6) The manufacturer of final products or the provider of output service shall maintain proper records for the receipt and consumption of the input services in which the relevant information regarding the value, tax paid, CENVAT credit taken and utilized, the person from whom the input service has been procured is recorded and the burden of proof regarding the admissibility of the CENVAT credit shall lie upon the manufacturer or provider of output service taking such credit." 15.1 On the perusal of the provisional bills of entry, TR-6 challans, final assessment bills of entry, Annexure sheet of cenvat credit of CVD & SAD before assessment and final asssement submitted by the assessee at the time of personal hearing, I find that the customs duties are levied on the copper .concentrate on advalorem basis based on the value detennined in terms of section 14 of the Customis Act, 1962 read with Custom Valuation Rules. .:007. The price of the copper concentrate is fixed based on LME price, therefore the bills of were provisionally assessed. After provisional assessment by the Proper Officer under section 18 of the Customs Act, 1962, the asses....
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....garding the BCD paid on the difference of value between provisional and final assessement in terms of section 18(2(a) of the Customs Act, 1962, which was sanctioned in OIO No.110/DC/SRT/REFUND/2014 dated-29.12.2014 passed by Deputy Commissioner, Customs Division, Surat in one of the bill of entry no.F-04/13-14 dated 22.04.2013 filed by the assessee. 15.4 In support of the above contention, I rely on the Hon'ble CESTAT, Mumbai Final Order No. A/17/2012-WZB/C-II(EB), dated 25-11-2011 in the case of M/s Monarch Catalyst Pvt Ltd v/s CCE, Thane-I, wherein in para 5, the Hon'ble CESTAT has stated that: "5. After going through the appeal papers and hearing both sides, we find that the short question involved in the appeal is whether the appellants are entitled to avail Cenvat credit of the duty paid on provisionally assessed, Bill of Entry. Under Rule 9 of the Cemvat Credit Rules, the documents have specins ully been prescribed on which the credit could be taken by the manufacturer. Under Rule 9(1) of the Cenvat Credit Rules at Sl. No. 'C', the main document mentioned is "Bill of Eniry". We find that the Sl. No. 'C' of Rule 9(1) does not state ....