TaxTMI 
TaxTMI 
2026 (5) TMI 361
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....d not fulfil export obligation within the prescribed time limit, they approached Hon'ble Settlement Commission which after consulting DGFT and Customs, passed final order No. 434-435/Final Order/CUS/MGR/2007 dated 27.11.2007. In this final order, it held that the appellant is liable to pay customs duty (including CVD) of Rs. 1698.52 lakhs in respect of Mumbai, Customs and Rs. 53.36 lakhs in respect of Ahmedabad, Customs. Accordingly, the appellant paid the above amounts and approached the Jurisdictional Assistant Commissioner Division-IV, Ahmedabad-II Commissionerate for refund of Rs. 822.89 lakhs on the ground that they were directed by the Settlement Commission to approach Jurisdictional Commissioner for grant of Modavat/Cenvat credit. Their refund application was rejected vide order-in-original No. 238/09 dated 24.04.2009 against which they filed appeal before Commissioner (Appeals) which was rejected vide order dated 17.09.2009. Subsequently, they approached CESTAT which vide order No. A/10246/2015 dated 18.03.2015 remanded the matter to the lower authority for examining the claim of payment of CVD by the appellant and satisfy himself regarding use of the material. In remand pr....
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....includes CVD amount aggregating to Rs. 822.90 lakhs. It is also a fact that out of this CVD amount, learned Commissioner (Appeals) has already allowed them Cenvat credit of Rs. 752.20 Lakhs. In the said order, he has not disputed payment of balance amount of Rs. 70.67 lakhs towards CVD. The learned Commissioner (Appeals) has also held that there is no dispute about use of imported goods by the appellant. The only ground taken by him for denying the above credit is that the imports were made under Notification No. 79/95-Cus which did not exempt CVD and therefore, CVD might have been paid at the time of import, credit of which would have been availed by the appellant. He relied on the decision of Tribunal in the case of Basawara Technologies Ltd Vs. Commissioner of Customs, New Delhi reported at 2017 (352) ELT 227 (Tri. -Del.) which held that the Commissioner (Appeals) cannot travel beyond the proceedings and cannot make out all together a new case, which was never the subject matter before the original adjudicating authority. Similar view was taken by the Tribunal in the case of Nilos India Pvt Ltd Vs. Commissioner of Customs, Chennai reported at 2009 (241) ELT 270 (Tri.-Chennai) an....
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.... of Rs. 70.67 lakhs by the learned Commissioner (Appeals). Learned AR reiterated the finding of the Commissioner (Appeals) and prayed for setting aside the party's appeal. 5. Heard both the sides. The issue to be decided in this case is whether Cenvat credit claim of Rs.70.67 lakhs rejected by the learned Commissioner (Appeals) pertains to amount of CVD paid by the appellant? 5.1 After settling their case as per the order of Settlement Commission, the appellant filed claim for allowing Cenvat credit of CVD of Rs. 822.89 lakhs paid on import of inputs and capital goods against 36 advance licenses. Vide impugned order, learned Commissioner (Appeals) allowed Cenvat credit of Rs. 752.22 lakhs only and rejected their claim for rest amount of Rs. 70.67 lakhs on the ground that in respect of 23 advance licenses, the appellant had imported goods by availing benefit of Notification No. 79/95-Cus dated 31.03.1995 where only Basic Customs Duty was exempt. He thus, concluded that the balance amount of Rs. 70.67 lakhs paid by the appellant is not towards CVD which finding has now been contested by the appellant before the Tribunal. 5.2 We find that the appellant has paid above amount i....
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....the case may be settled by accepting the total duty liability to the tune of Rs.1748.71 lakhs." 5.3 We further find that para 11.4 of this order notes that :- "11.4 The Revenue further submitted that according to the JDGFT, the total liability on account of 27 Advance Licences pertaining to application No.1, is Rs.1698.52 lacs (without interest). The Department's claim is Rs. 1949.95 lacs which was also submitted earlier. The difference in the amounts claimed [as against the claim of JDGFT] is on account of the following. 11.4.1 During the material period, there were 2 Notifications that governed the Advance Licence Scheme, viz., Notification No(s).79/95-Cus dated 31.03.1995 and 30/97-Cus dated 01.04.1997. In the former Notification, only the Basic Duty was exempt (as seen from the copies of the Bills of Entry), and in respect of the second mentioned Notification both Basic Duty and C.V. Duty were exempted. 11.4.2 The JDGFT in their calculation have taken into account only the Basic Customs duty i.e. they have considered only amounts to the extent of Duty Foregone on account of Basic Duty and have not taken into account the liability on account of ....