Commissioner of Central Excise & Service Tax LTU New Delhi v. Elayellsindia Ltd.

1. These appeals by the Commissioner of Central Excise & Service Tax under Section 35G ofthe Central Excise Act 1944, are directed against the final order dated 16'*'January 2015 passed by the Customs,Excise & Service Tax Appellate Tribunal('CESTAT')in Appeals Nos. E/571715 and 57178 of2013. CEACNos.43and44of2015 Page I of[4] 2015:DHC:10908-DB

2. The Respondents are manufacturers of moulded cases circuit breakers ('MCB'), switches, fuses, etc. chargeable to central excise duty. The period of disputes in these appeals before the CESTAT are from 22"^^ April 2004 to 29^ April 2005 and 23'^'^ December 2005 to 7^ January

2006.

3. The Respondents imported raw materials by availing exemption under Notification No. 96/2004-Cus dated 17''^ September 2004. The customs duty as well as additional customs duty were paid using Duty Entitlement Pass Book(DEPB)scrips issued in terms ofthe 2002-07 Foreign Trade Policy(FTP).The Respondents availed ofCenvat credit for the additional customs duty paid through DEPB scrips. In terms ofthe Notification NO. 34/97-Customs dated 7'^ April 1997 goods specified in Schedule I to the Customs Tariff Act, 1975 (CTA) imported would be exempted from payment ofthe whole ofthe duty of customs as well as additional duty subjectto importer having DEPB with sufficient credit.

4. Notification No. 96/2004-Cus provided that the importer using the DEPB would be "entitled to drawback or CENVAT credit of additional duty leviable under Section 3 ofthe CTA against the amount debited i the DEPB issued in terms ofpara[4].[3] or 7.[9] ofthe FTP 2004-09.

5. The case of the Department was that the Assessee had paid the CEACNos.43and44of2015 Page2of[4] additional customs duty using the DEPB issued under the FTP of2002-07 while the benefit of CENVAT credit could be availed in terms of the Notifieation No. 96/2004-Cus only when the payment of import duty or additional customs duty had been made using the DEPB issued under the FTP of2004-09.

6. The Division Beneh of Punjab and Haryana High Court in has in its order dated 22"'^ April 2010 in CEA No.37 of2010 {Commissioner of Central Excise v. M/s. Neel Kanth Rubber Mills)referred to the EXIM Policy which was amended by the Notifications dated 28'*^ January 2004 and 17 September 2004 which entitled an importer to avail Cenvat credit of additional customs duty against the amount debited in the DEPB scrips. It was noted by the High Court that there was no condition in the said notifications that the debits made in the DEPB issued under a partieular FTP alone would be eligible for CENVAT eredit and that debits in a DEPB issued under a previous FTP would not be eligible for credit.

7. Ms. Sonia Sharma, learned counsel for the Appellant states, on instructions,that to the best ofthe knowledge ofthe Appellant,no appeal has been filed as ofdate against the aforementioned order ofthe Punjab and Haryana High Court in CommissionerofCentralExcise v. M/s. Neel Kanth Rubber Mills {supra) which decides the issue in favour of the CEACNos. 43and44of2015 Page3of[4] Assessee and againstthe Department.

8. The Court finds that the said decision indeed covers the issue against the Department on all fours. The Appellant has not been to show any notification by which the benefit ofCENVAT credit has been expressly denied where the payment ofcustoms duty or additional customs duty is made using DEPB scrips issued in terms ofthe FTP 2002-07.

9. Nosubstantial question oflaw arisesforconsideration bythe Court.

10. The appeals are dismissed.

OCTOBER 06,2015 Rk S.M IDHAR,J VIBHU BAKHRU,J CEACNos.43and44of2015 Page4of[4]