CCE Vs Hindalco Industries Ltd. (CESTAT Ahmedabad)
CESTAT Ahmedabad has upheld the Commissioner (A) Order allowing Cenvat credit of the duty paid on provisionally assessed bill of entry in a case where the final assessment revealed that less duty was payable. The Tribunal in this regard relied upon number of case law and observed that it is settled that even though certain amount of excise duty/service tax is not payable as per law but the manufacturer/service provider pays it, Cenvat Credit cannot be denied at the recipient end only on the ground that the same was not payable by the manufacturer/service provider.
FULL TEXT OF THE CESTAT JUDGEMENT
The brief facts of the present case are that the appellant have availed cenvat credit in respect of CVD paid on imported raw-material namely copper Concentrates based on provisionally assessed bills of entry. Since the value of the goods under Customs Act is based on copper Concentrate the bill of entry was initially provisionally assessed and on final assessment the value was determined on lower side, therefore, the duty paid on the basis of provisionally assessed bills of entry was found in excess as compared to the actual duty playable assessed finally. The case of the department is that the correct value of the goods is the value which was finally assessed, therefore, the respondent were not entitle for the cenvat credit paid in excess on the basis of provisionally assessed bills of entry. The department also contended that the amount of duty paid on the provisionally assessed bills of entry is deposit and not the duty actually payable as per the finally assessed bill of entry ,therefore, CVD paid as per provisionally assessed bill of entry is not admissible for cenvat credit to the appellant. The adjudicating authority dropped the proceeding of the show cause notice. Being aggrieved by the impugned order Revenue filed the present appeal.
2. Shri. Deepak kumar, Learned Special Counsel appearing on behalf of the Revenue reiterates the grounds of appeal. He submits that the appellant availed the cenvat credit of CVD based on provisionally assessed bill of entry. Since the payment under provisionally assessed bills of entry is provisional, therefore, the same cannot be considered the same as duty but it is considered as deposit ,therefore, the appellant were entitle to cenvat credit only on the CVD amount which has been determined in the finally assessed bill of entry. The adjudicating authority has erred in dropping the proceeding.
3. On the first date that is on 21.06.2019 the matter was heard in detail when the respondent was represented by Shri. V. Shridharan, Learned senior Counsel along with Shri. Anand Nainawati and shri. Ishan Bhatt, advocates, however for some clarification the matter was relisted and it was finally heard on 06.11.2019.
4. The respondent takes support of the adjudication order. They submits that the provisional assessment bill of entry is also with authority of law as provided that under Section 18 of the Customs Act, 1962, therefore, the duty paid at the time of provisional assessment of bill of entry cannot be said to be deposit but it is a payment of duty in terms of Section 18. For this reason the cenvat credit of CVD paid on provisional assessment is admissible. They alternatively submit that even if it is considered that the excess duty is not payable but since the same was paid the cenvat credit is admissible in terms of Rule 3 of Cenvat Credit Rules, 2004. He submits that the issue is squarely covered by the various judgments. They relied upon the following judgments:-
