Page 220 - ELT_1st August 2020_Vol 373_Part 3

402 EXCISE LAW TIMES [ Vol. 373

2020 (373) E.L.T. 402 (Tri. - Ahmd.)
IN THE CESTAT, WEST ZONAL BENCH, AHMEDABAD
[COURT NO. III]
S/Shri Ramesh Nair, Member (J) and Raju, Member (T)
COMMR. OF CENTRAL EXCISE, BHARUCH
Versus
HINDALCO INDUSTRIES LTD.
Final Order No. A/10792/2020-WZB/AHD, dated 12-3-2020 in Appeal No.
E/11932 of 2016 in Misc. (CROSS) Application No. E/10006/2017
Cenvat credit - Quantum of - Provisional assessment being also pro-
vided under a statute i.e. under Section 18 of Customs Act, 1962, therefore,
payment made under provisionally assessed bills of entry is a deposit and not
a duty - Provisionally assessed bills of entry also valid document for availing
Cenvat credit - Consequently, Cenvat credit cannot be denied merely because
Cenvat Credit taken on provisionally assessed bills of entry - Even though as
per final assessment there was excess payment of CVD which was otherwise
not payable, Cenvat credit on the said excess paid CVD cannot be denied -
Rules 3 and 9 of Cenvat Credit Rules, 2004. [paras 5, 5.6]
Appeal dismissed
CASES CITED
Commissioner v. MDS Switchgear Ltd. — 2008 (229) E.L.T. 485 (S.C.) — Relied on ............... [Paras 4, 5.4]
Commissioner v. Nahar Granities Ltd. — 2014 (305) E.L.T. 9 (Guj.) — Relied on ........................... [Para 4]
Kesarwani Zarda Bhandar v. Commissioner — 2016-TIOL-1348-CESTAT-MUM
— Relied on .............................................................................................................................. [Paras 4, 5.1]
MDS Switchgear Ltd. v. Commissioner — 2001 (132) E.L.T. 405 (Tribunal) — Relied on ...... [Paras 4, 5.4]
Nahar Granites Ltd. v. Commissioner — Order No. A/10878/WZB/AHD/2013,
dated 23-7-2013 — Relied on .................................................................................................. [Paras 4, 5.3]
Sterlite Industries (I) Ltd. v. Commissioner — 2012 (25) S.T.R. 66 (Tribunal) — Relied on .... [Paras 4, 5.2]
REPRESENTED BY : Shri Deepak Kumar, Special Counsel (PRV), for the
Appellant.
S/Shri V. Shridharan, Senior Advocate with Anand
Nainawait and Ishan Bhatt, Advocates, for the Re-
spondent.
[Order per : Ramesh Nair, Member (J)]. - 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 as-
sessed 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 payable 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 entitled for the Cenvat credit paid in excess
on the basis of provisionally assessed bills of entry. The department also con-

EXCISE LAW TIMES  1st August 2020  220