TaxTMI 
TaxTMI 
2021 (1) TMI 1368
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....012, additional duty of 1% Adv. is to be levied for imported steam coal. The appellant availed Cenvat credit of this additional 1% customs duty paid by them for the period from June 2012 to June 2013 and of 2% additional customs duty paid for the period from July 2013 to December 2015; and thus total amount of Rs. 18,61,68,847/-. The credit availed was utilised by them for payment of duty on clearance of their final product for the period from 01.06.2012 to 31.12.2015. 1.3 The department was of the view that on a harmonious reading of Clause (vii) with Clause (i) of sub-rule 1 of Rule 3 of Cenvat Credit Rules, 2004, there is a prohibition/restriction to avail Cenvat credit on this additional duty paid by appellant on imported steam coal. Show Cause Notice was issued proposing to disallow the credit and to recover the same along with interest and for imposing penalties. After due process of law, the original authority confirmed the demand along with interest and imposed penalties. Aggrieved by the said order, the appellants are now before this Tribunal. 2. On behalf of the appellant, learned Counsel Shri M.S. Nagaraja, appeared and argued the matter. The submissions are summar....
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....3.2012. These restrictions would apply only to coal procured indigenously on payment of concessional rate of excise duty as per the notifications issued under Section 5 of the Central Excise Act, 1944. The appellants have paid additional duty of customs under the Customs Tariff Act and availed the concessional rate of duty under the Customs Notification. The department has denied the credit stating that the additional duty of customs being equivalent to duty of excise being levied on any article imported into India is the duty of excise and therefore not eligible for credit as stipulated in Rule 3 (1) (i) of CCR, 2004. c. It is explained by the Ld. Counsel that the term "equivalent to the duty of excise" specified for the purpose of levy of additional duty of customs is only a measure of collection and does not change the nature and character of duty paid on the imported goods from "customs duty" to "excise duty". Therefore, the provisions of Rule 3 (1) (vii) allows Cenvat Credit of the additional duty of customs available under Section 3 of the Customs Tariff Act, equivalent to the duty of excise duty under Notification No. 12/2012-Cus. dated 17.03.2012 as amende....
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....2-CE dated 17.03.2012, is a central excise Notification issued under Section 5 of the Central Excise Act, 1944. Whereas, subclause (vii) of Rule 3 (1) speaks about additional duty of customs which is levied under Section 3 of Customs Tariff Act. The prohibition is with respect to concessional duty paid under Central Excise Notification whereas, in the present case, concessional rate of additional duty of customs is paid under Customs Notification dated 17.03.2012. To be more clear the additional duty of customs (CVD) is calculated as the equivalent excise duty payable on like article whereas it is levied and collected under Customs Tariff Act. The concession in rate of duty is given as per Customs Notification. The additional duty of customs being a „customs duty‟ is not hit by the provision in Rule 3 (1) (i) of CCR, 2004. 5.2 The very same issue was analysed by the Tribunal in the case of Hindustan Zinc Ltd., (supra). The relevant portion is reproduced as under:- "3. Hindustan Zinc is engaged in the manufacture of zinc and lead concentrates falling under Chapter 26 of the First Schedule to the Central Excise Tariff Act, 19855 and has been availing the facil....
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....onsidered this precise issue and held that if additional duty of customs has been paid after taking into consideration the Customs Notification dated March 17, 2012, there would be no bar for availment of CENVAT credit in terms of rule 3(vii) of the CENVAT Credit Rules. The relevant paragraph of the decision is reproduced below: "5 On careful consideration of the submissions made by both the sides, I find that the sole reason to deny Cenvat credit to the appellant is that the authorities below has taken into consideration Notification No. 12/2012-CE., dated 17-3-2012. The authorities below have not considering the Notification No. 12/2012-Cus., dated 17-3- 2012. If same is taken into consideration and duty paid under the said notification, there is no bar for availment of cenvat credit in terms of Rule 3 (vii) of Cenvat Credit Rules, 2004. Therefore, I hold that authorities below have applied wrong provision to deny Cenvat credit to the appellant. Therefore, Cenvat credit cannot be denied to the appellant. In that circumstance, I hold that the appellant has correctly availed the Cenvat credit of CVD paid E/52928/2019 E/52774/2019 14 on imported coal in terms of Rule 3(7) o....
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....xcise notification which denies availment of Cenvat credit on imports of coal manufactured by the supplier of coal, as has been taken the basis in the order-in-original, shall therefore be applicable for domestically manufactured goods only and not on the imported coal. Perusal of Excise Notification No. 67 further reveals that no such condition is applicable in case of import of coal. 8. The narrow compass of the adjudication, therefore, remains as to whether under Customs notification against S. No. 67 i.e., while importing the coal, the appellants were entitled to avail the Cenvat credit on the amount of CVD paid. E/52928/2019 E/52774/2019 15 The Cenvat credit is applicable as per Rule 3(1) of the Cenvat Credit Rules, 2004. Clause 7 thereof entitles the appellants to avail the Cenvat credit in the given circumstances. The said Rule itself clarifies that the Cenvat credit of duty of excise is not allowed to be taken when paid on any goods specified under S. Nos. 67 and 128 of Excise Notification No. 12/2012, dated 17-3-2012. Admittedly, the notification relied upon by the department for denying the impugned benefit to the appellant is Customs Notification No. 12/2012, da....