Page 221 - ELT_1st August 2020_Vol 373_Part 3

2020 ] COMMR. OF CENTRAL EXCISE, BHARUCH v. HINDALCO INDUSTRIES LTD. 403

tended 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 en-
try therefore, CVD paid as per provisionally assessed bill of entry is not admissi-
ble 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 entitled to Cenvat credit only on the CVD
amount which has been determined in the finally assessed bill of entry. The ad-
judicating authority has erred in dropping the proceeding.
3. On the first date that is on 21-6-2019 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
6-11-2019.
4. The respondent takes support of the adjudication order. They sub-
mits 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 :-
• Kesarwani Zarda Bhandar v. CCE, Thane-I - 2016-TIOL-1348-CESTAT-
MUM
• Sterlite Industries (I) Ltd. v. CCE, Tirunelveli - 2011-TIOL-1463-
CESTAT-MAD = 2012 (25) S.T.R. 66 (Tribunal).
• Nahar Granites Ltd. v. CCE & ST, Ahmedabad, Order No.
A/10878/WZB/AHD/2013, dated 23-7-2013.
Affirmed by High Court of Gujarat at 2014 (305) E.L.T. 9 (Guj.)
• MDS Switchgear Ltd. v. CCE, Aurangabad - 2001 (132) E.L.T. 405 (Tri.
Mum)
Affirmed at 2008 (229) E.L.T. 485 (S.C.)
5. We have heard both the sides and perused the records. We find that
the show cause notice proposed to deny the Cenvat on the ground that the credit
on the bill of entry can be taken only if it is finally assessed and credit cannot be
taken on provisionally assessed bill of entry. The show cause notice also con-
tended that the duty so paid on the basis of provisionally assessed bill of entry is
not a duty but the same is deposit, therefore, the credit of such deposit is not
admissible. We find that the provisional assessment is also provided under a

EXCISE LAW TIMES  1st August 2020  221