Page 222 - ELT_1st August 2020_Vol 373_Part 3

404 EXCISE LAW TIMES [ Vol. 373

statute i.e. under Section 18 of the Customs Act, 1962, therefore, the duty paid on
the provisional assessment of bills of entry is also with authority of law. There-
fore, it cannot be said that the payment made under provisionally assessed bills
of entry is a deposit and not a duty. The provisionally assessed bills of entry is
also valid document for availing the Cenvat credit, for the reason that under Rule
9 of Cenvat Credit Rules only bill of entry is prescribed on the basis of which the
payment of Customs duty was made, therefore, bill of entry whether it is provi-
sional of finally assessed, the Cenvat Credit is admissible. There is no bar in the
law to restrict the Cenvat Credit on the CVD paid on the basis of provisionally
assessed bills of entry. Therefore, merely because the Cenvat Credit was taken on
provisionally assessed bills of entry, there is no reason to deny the Cenvat Credit.
It is a settled law that even if any duty or excess duty paid which is otherwise not
payable, and the recipient and Cenvat Credit cannot be disputed. On this issue
the Tribunal has passed the various judgments which are reproduced below :
5.1 In the case of Kesarwani Zarda Bhandar (Supra) the Tribunal passed
the following order paragraph-5.
5. I have carefully considered the submissions made by both the sides. I
find that there is no dispute that the appellant have paid the service tax on
GTA service, which was performed for transportation of goods from their
Allahabad unit to Kalher depot. Therefore in my view the service tax paid
in respect of certain service even if service was undertaken other than the
appellants factory, the credit can be availed at anyone place. In the present
case, the credit was admittedly taken by the appellant and the same was
not taken by any other unit. Without prejudice to the above, I also found
that as per the judgments relied upon by the Ld. Counsel, even if It is ac-
cepted that on the part of the appellant no service exist, the payment of ser-
vice tax made by the appellant is the service tax paid in excess, therefore the
credit of such excess paid service tax is allowable. The decisions relied upon
by the Ld. Counsel are reproduced below :
(i) Bajaj Allianz General Industries Co. Ltd. (supra) has held as under -
“7.5 From the above discussion, it is very much clear that the insur-
ance auxiliary services provided by the agents in the State of Jammu
& Kashmir are not taxable. Therefore, the appellants are not liable to
pay Service Tax for the said services of the insurance agents. In these
terms, whatever credit is taken by the appellant is nothing but the re-
fund of tax erroneously paid by them. Similar issue came before the
Hon’ble Supreme Court in the case of CIT v. Mahalakshmi Textile Mills
Ltd. - 1967 (66) ITR 710 (SC) wherein the Hon’ble Supreme Court held
that -
“5. By the first question the jurisdiction of the Tribunal to allow a
plea inconsistent with the plea raised before the departmental au-
thorities is canvassed. Under sub-section (4) of Section 33 of the In-
dian IT Act, 1922, the Tribunal is competent to pass such orders on
the appeal “as it thinks fit”. There is nothing in the IT Act which re-
stricts the Tribunal to the determination of questions raised before
the departmental authorities. All questions whether of law or of fact
which relate to the assessment of the assessee may be raised before
the Tribunal : If for reasons recorded by the departmental authori-
ties in rejecting a contention raised by the assessee, grant of relief to
him on another ground is justified, it would be open to the depart-
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