TaxTMI 
TaxTMI 
2024 (1) TMI 769
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....affirmed by High Court of Calcutta in Commissioner of CGST & C. EX, Bolpur Commissionerate Vs. Shyam Steel Industries Ltd. - 2022 (382) ELT 329 (Cal). 3. Briefly stated, the respondents are engaged in the manufacture of different varieties of Cement and Clinkers falling under chapter heading 25 of the Central Excise Tariff. The respondents were using steam coal, procured both domestically as well by way of import. In respect of the imported steam coal, the respondents were paying basic customs duty at 2% Adv. and CVD at 2% Adv. in terms of Sl. No.123 of Notification No.12/ 2012-Cus dated 17.03.2012, (as amended from time to time) and were availing Cenvat credit in respect of the CVD paid on the imported coal in terms of Rule 3(1) of the Cenvat Credit Rules, 2004 (hereinafter referred to as the Rules) for the period March, 2015 to June, 2017. Show cause notice dated 04.03.2020 was issued, denying the credit of Rs.1,77,21,912 and for recovery of the said amount along with interest and penalty under Rule 15 of the Rules, 2004. The Adjudicating Authority vide order dated 31.08.2020 confirmed the show cause notice. The appeal filed by the respondents was allowed by the Commissioner (....
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....(v), (vi) and (via): (viia).........................................................(Emphasis supplied)." 8. The very first order passed by this Tribunal in the case of Hindalco Industries Ltd Vs. GST, Bhopal - 2018 (363) ELT 1085 (Tribunal- Delhi) applying Rule 3 (vii) of the Rules, it was held that the appellant therein had correctly availed the Cenvat credit of CVD paid on imported coal in terms of notification no.12/2012-Cus dated 17.03.2012. The Ahmadabad Bench in M/s Asahi Songwon Colors Limited Vs. Commissioner, Central Excise & ST, Vadodara - 2018 (9) TMI 159-CESTAT interpreted Rule 3 to say 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. Whereas the appellant have imported coal and CVD of 2% is leviable in terms of Customs notification no. 12/2012 - Cus. dated 17.03.2012. 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 at 2% was paid by availing notification no.12/2012-CE which is not the case here. Reference....
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....erial numbers 67 and 128 in respect of which the benefit of an exemption under Central Excise Notification dated March 17, 2012 had been availed. In fact, Hindustan Zinc had paid additional duty of customs by availing the benefit under serial number 122A/123 of the Customs Notification dated March 17, 2012. It is because of this misreading of rule 3(1) of the CENVAT Credit Rules that led the Commissioner to commit an error. 15. The Regional Advisory Committee of Hyderabad Zone, in its meeting held on February 9, 2015 considered this very issue at point No. 1 and concluded that CENVAT credit of additional duty of customs paid on imported goods under Customs Notification dated March 17, 2013 (and not under Central Excise Notification) is available for credit. The relevant portion of the minutes is reproduced below: "MINUTES OF THE MEETING OF THE REGIONAL ADVISORY COMMITTEE, HYDERABAD ZONE HELD ON FEBRUARY 09, 2015. Point No. 1 - Credit on imported coal:- Many manufactures are importing steam coal on payment of duties. As per Customs Notification No. 12/2012-Cus. They are availing concessional CVD @ 2%. Audit is of the view that since CVD has been p....
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.... of proviso to rule 3(1) of CENVAT credit Rules, 2004, ('the Rules' for short) in view of the benefit availed by the assessee and the said exemption notifications, CENVAT credit would not be allowable. It is this view which the assessee has challenged before us. ******** 3. It is not in dispute that the assessee has availed of the benefit of exemption notification 1 of 2011 and also the benefits under Sr. 67 and 128 of exemption notification 12 of 2012. In that view of the matter, the above noted proviso of the Rules, would disentitle the assessee from claiming CENVAT credit. Counsel for the assessee however submitted that this proviso refers to CENVAT credit of "such duty of excise". In the present case, what the assessee has paid was the countervailing duty. The same may have been computed in terms of excise duty payable on local manufacturers, nevertheless, the same cannot be treated as duty of excise perse. He however candidly agreed that facility for getting CENVAT credit in the case of the present assessee flows from rule 3 of the Rules. As per sub-rule (1) of rule 3, a manufacturer or producer of a final product or a provider of output service would....