2022 (3) TMI 190

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....r Cenvat Credit. Being aggrieved by the order of the Commissioner (Appeals), the appellant filed the present appeal. 3. Shri. R. R. Dave, Learned Consultant appearing on behalf of the appellant submits that in the present case the CVD was paid by availing exemption Notification No. 12/12-Cus dated 17.03.2012 on which there is no restriction under Rule 3 (i) and proviso thereof, therefore, applying the proviso to Rule 3 (i) Cenvat Credit cannot be disallowed. He submits that the issue is already decided in their own case vide this Tribunal's Final Order No. A/11585/2018 dated 09.07.2018. 4. Shri. G. Kirupanandan, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. He placed relia....

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....nt case the CVD was paid by not availing the aforesaid excise notifications but it was paid by availing Customs Notification No. 12/2012-Cus, therefore, the restriction provided in Rule 3 (i) and proviso thereof shall not be applicable to the facts of the present case. The issue is no longer res-Integra as in the appellant's own case this Tribunal has decided the same issue by Final Order No. A/11585/2018 dated 09.07.2017 which is reproduced below:-  "The brief facts of the case are that the appellant have availed Cenvat credit of 2% CVD lavied in terms of Notification No. 12/2012-Cus dated 17.03.2012, as amended. The case of the department is that, in terms of Rule 3 (1)(i)(b) of Cenvat Credit Rules, the assessee is not entit....

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..../2012-CE, dated 17th March, 2012 is availed;]" From the above Rule, it is observed that even if any duty is paid by availing exemption Notification No. 12.2012-CE dated 17.03.2012, the same will not be available as Cenvat credit for the user of the goods. In the present case, admittedly, the appellant have imported Coal and CVD of 2% is leviable in terms of Customs Notification No. 12/2012-Cus. There is no restriction provided in Rule 3 as regards duty paid under Customs notification. This restriction is applicable only in case of indigenous goods on which the excise duty @ 2% was paid availing Notification No. 12/2012-CE, which is not a case here. Therefore, the appellant is entitled for Cenvat credit in respect of CVD paid under ....