TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 1035
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....he "appellant") are engaged in the manufacture of Sponge Iron, M.S. Billet and TMT Bars falling under Chapter 72/73 of Central Excise Tariff Act. For manufacture of Sponge Iron, inputs such as Iron Ore, Coal, Dolomite, etc., are used. The appellant procures Coal, domestically as well as outside the territories of India and also from registered importers of Coal and claims CENVAT Credit of CVD paid on Coal treating the same as 'inputs' in terms Rule 2(k) of the erstwhile CENVAT Credit Rules, 2004. 2.1. During the period of June, 2014 to June, 2017, the appellant imported ''Steam Coal' from outside the territory of India on payment of concessional CVD under Section 3 of the Customs Tariff Act, 1975, @2% in terms of Customs Tariff Notification No.12/2012-Cus. (Sl.No.123) dated 17-03-2012 as amended by Customs Tariff Notification No.12/2013-Cus. Dated 01-03-2013. 2.2. The Department conducted audit under EA-2000 for the year 2014-15 and 2015-16 between 28-08-2017 to 30-08-2017 and on scrutiny of Cenvatable documents, vide Audit observation bearing No. C.No.III (10-A)154/IA/CEX/JSR/Gr-10/2016 dated 08-09-2017, it was observed that the Appellant has purportedly availed CENV....
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....te of Central Excise Duty paid under Central Excise Tariff Notification No.1/2011-C.E. dated 01-03-2011 and under Sl.No.67 of Central Excise Notification No.12/2012-C.E dated 17-03-2012 as amended, which are procured from domestic manufacturer/producers and not in respect of Customs Tariff Notification No.12/2012-Cus dated 17-03-2012 as amended on payment of concessional rate of CVD @ 2% adv on Coal imported from outside the territory of India/registered importers. Thus, the appellant's submission is that they have not erred in law by claiming CENVAT Credit of CVD paid on imported Coal; they have claimed concessional rate of CVD under Sl. No.123 of Customs Tariff Notification No.12/2012-Cus. dated 17-03-2012 as amended by Customs Tariff Notification No.12/2013-Cus.and not under any Excise Tariff Notification No.1/2011-C.E. dated 01-03-2011 and hence, the conditions of not claiming CENVAT Credit under proviso to Rule 3(1)(i) read with Rule 2(d) of the CENVAT Credit Rules, 2004 has no application to the instant case. 3.2. The Ld. Counsel for the appellant submits that the issue is no longer res integra, as CENVAT Credit has been allowed by Tribunals on the same issue. The followin....
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....llant has imported Coal on payment of CVD at the concessional rate of 2% as provided under Entry Sl.No.123 of Customs Tariff Notification No.12/2012-Cus dated 17-03-2012, as amended by Notification No.12/2013-Cus. Dated 01-03-2013. The appellant has availed the credit of the CVD paid on the imported coal. The department proposed to deny the credit on the ground that Rule 3 of the CENVAT Credit Rules, 2004, imposes restrictions on availment of CENVAT Credit is in respect of concessional rate of Central Excise Duty paid under Central Excise Tariff Notification No.1/2011-C.E. dated 01-03-2011 and under Sl.No.67 of Central Excise Notification No.12/2012- C.E dated 17-03-2012, as amended. In this regard, we observe that the said restriction is applicable only when coal is procured from domestic manufacturer/producers and not in respect of imported coal by availing the concessional rate of CVD in terms of Customs Tariff Notification No.12/2012-Cus dated 17-03-2012, as amended, as has been claimed by the appellant in this case. In these facts and circumstances, we hold that the appellant have not erred in law while claiming CENVAT Credit of CVD paid on imported Coal. Thus, the conditions ....
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....stricting credit in case of coal cleared under Excise Notification No. 12/2012, dated 17-3-2012 cannot impliedly be read into when the rate of CVD has not been followed from the excise notification but as generally applied the rate on its opinion. Thus, the Tribunal held that there is no room for any intendment in taxing statutes and they require strict interpretation. Further the Tribunal held that even if generally applied rate of CVD which was 1% up to 28-2-2013 and 2% thereafter under the customs notification and the concessional excise duty read on domestically manufacture goods 1% without Cenvat excise notification where not uniform and in any event the expression "equivalent" appearing in Rule 3(1)(vii) of the Rules for modification of CVD could not be restricted including the tariff rate of excise duty of 6% on the domestically manufacture goods. The Tribunal also referred to one of its decisions in the case of Jaypee Sidhi Cement Plant v. CCGST, Customs and Excise, Jabalpur [2019 (369) E.L.T. 1673]. ..... 8. That apart, we find that the Regional Advisory Committee for Hyderabad zone which is the Committee consisting of 10 Members, 5 from the department wh....
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..... Commissioner of C.G.S.T. reported in 2020-TIOL-1545-CESTAT-DEL. The relevant paragraphs of the said decision are reproduced below: - "13. A bare perusal of rule 3(1)(i) indicates that a provider of output service shall be allowed to take CENVAT credit of the duty of excise specified in the First Schedule to the Excise Tariff Act specified in the First Schedule to the Excise Tariff Act, leviable under the Excise Act subject to the two conditions mentioned in proviso (a) & (b). However, rule 3(1)(vii) provides that a provider of output service shall be allowed to take credit of the additional duty leviable under section 3 of the Customs Tariff Act, equivalent to the duty of excise specified under clauses (i), (ii), (iii), (iv), (v), (vi) and (via). 14. The Commissioner has mixed up rule 3(1)(i) and rule 3(1)(vii) of rule 3 of the CENVAT Credit Rules. It is for this reason that the conditions specified in rule 3(1)(1) have also been imported into rule 3 (1)(vii) of the CENVAT Credit Rules. In the first instance, Hindustan Zinc had not paid duty of excise specified in the First Schedule of the Excise Tariff Act, nor it had availed the benefit of the Central Excise N....
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.... and circumstances on a wrong presumption that the levy of CVD in dispute is since equal to the Excise duty leviable on the similar goods and manufactured in India, that the benefit of Customs Notification No. 12/12 has wrongly been denied vide Order. Learned Counsel has relied upon the decision of this Tribunal In the case of M/s. Hindalco Industries Ltd. vs. GST, Bhopal as was pronounced in Appeal No. E/50179/2018-SM vide Final Order No. 50676/2018, dated 8-3-2018 [2018 (363) ELT. 1085 (Tri.-Del)] Reliance has also been placed on another decision of the Tribunal in the case of Asahi Songwon Colors Ltd. v. CCE & ST, Vadodara Appeal No. E/10635/2017-SM vide Final Order No. A/11585/2018 (Ahmd.), dated 9-7-2018. Therefore, the order in challenge is prayed to be set aside and appeal is prayed to be allowed 5. Learned Departmental Representative justified the orders. 6. After hearing both the parties and perusing the record, we are of the opinion as follows It is admitted that the appellants have imported coal consequent thereto they have paid 1%/2% on CVD in addition to Basic customs duty. The CVD has been paid at the said exempted rate taking the benefit of....
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....notification for manufacture of coal (emphasis supplied) 18. The same view was taken by the Tribunal in Asahi Songwon Colors and the relevant paragraph is reproduced below "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 Notification No. 12/2012-Cus. Moreover, since the Notification No. 12/2012-CE is applicable only in respect of indigenously manufactured coal and not in respect the imported coal as held by the Hon'ble Supreme Court in the case SRF Limited vs CC, Chennai- 2015 (318) ELT 607 (SC) Therefore, even if the i....
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.... flows from rule of the Rules. As per subrule (1) of rule 3, a manufacturer or producer of a final product or a provider of output service would be allowed to take the CENVAT credit on the duty of excise specified in the First Schedule to the Excise Tariff Act, leviable under the Excise Act. Sub rule (1) rule 3 which gives the concession of availment of CENVAT credit of the duty paid, also uses the same expression "duty of excise" as is used in the proviso which restricts or limits the right of availment of such facility under certain circumstances. The expression "duty of excise" used in clause (i) of subrule (1) of rule 3 and the above noted proviso to the said rule, must receive same interpretation. The term "duty of excise" cannot have different connotations for the purpose of subrule (1) of rule 3 and for the purpose of proviso to the rule 3. Thus, if we accept the contention of the counsel for the assessee that the countervailing duty would not be included in the expression "duty of excise" for the purpose of the said rule, the assessee's very foundation of claiming the benefit of CENVAT credit would disappear 21. This decision of the Gujarat High Court in Lonsen....