2018 (3) TMI 1124 – CESTAT, NEW DELHI – 2018 (363) E.L.T. 1085 (Tri. – Del.) – CENVAT credit – CVD paid by the appellant on imported coal – sole reason to deny Cenvat credit to the appellant is that the authorities below has taken into consideration N/N. 12/2012-CE dated 17.3.2012 – Held that: – 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(7) of Cenvat Credit Rules, 2004 – authorities below has applied wrong provision to deny Cenvat credit to the appellant. Therefore, Cenvat credit cannot be denied to the appellant.
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Extended period of limitation – Held that: – As the Revenue itself has applied wrong provisions of law, therefore, the extended period of limitation is not invokable.
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Appeal allowed – decided in favor of appellant. – Appeal No. E/50179/2018-SM – Final Order No. 50876/201
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duty in terms of the Notification No. 12/2012-Cus. dated 17.3.2012 and availed Cenvat credit thereof in terms of Rule 3 of the Cenvat Credit Rules 2004. Revenue is of the view that in terms of Notification No. 12/2012-CE dated 17.3.2012 and as per Cenvat Credit Rules 3(1) proviso, the appellant is not entitled to avail Cenvat credit. In these set of facts, a show cause notice was issued to the appellant for the period June 2012 to December 2012 on 5.12.2016 by invoking extended period of limitation to deny Cenvat credit to the appellant. The matter was adjudicated, Cenvat credit was denied. Against the said order, the appellant is before me. 3. The ld. Counsel appearing on behalf of the appellant submits that Notification No. 12/2012-CE dated 17.3.2012 applicable to domestically manufactured goods and Notification No. 12/2012-Cus. dated 17.3.2012 for imported coal. In both the cases, assessee is required to pay duty @ 1%. In case of imported coal, appellant is required to pay CVD @ 1%.
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period is not invocable. 4. Heard the parties. Considered the submissions. 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(7) of Cenvat Credit Rules, 2004. Therefore, I hold that authorities below has applied wrong provision to deny Cenvat credit to the appellant. Therefore, Cenvat credit cannot be denied to the appellant. In that circumstances, I hold that the appellant has correctly availed the Cenvat credit of CVD paid on imported coal in terms of Rule 3 (7) of Cenvat Credit Rules, 2004. Further, I find that the show cause notice has been issued by invoking
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