Page 231 - ELT_1st August 2020_Vol 373_Part 3

2020 ] COMMR. OF CENTRAL EXCISE, BHARUCH v. HINDALCO INDUSTRIES LTD. 413

15.1 On the perusal of the provisional bills of entry, TR-6 challans, final
assessment bills of entry, Annexure sheet of Cenvat credit of CVD A SAD
before assessment and final assessment submitted by the assessee at the
time of personal bearing, I find that the customs duties are levied on the
copper concentrate on ad valorem basis based on the value determined in
terms of section 14 of the Customs Act, 1962 read with Custom Valuation
Rules, 2007. The price of the copper concentrate is fixed based on LME
price, therefore the bills of entry were provisionally ‘assessed. After provi-
sional assessment by the Proper Officer under section 18 of the Customs
Act, 1962, the assessee had paid duties in respect of bills of entry filed at the
port of import. Thereafter, the assessee had availed the credit of CVD, Edn.
Cess, SH Edn Cess and SAD paid under the provisionally assessed bills of
entry.
The contention of the department in denying the credit to the appellant is
not legally correct. I find that in a scheme of Cenvat Credit Rules, there are
certain parameters on the basis of which the manufacturer is entitled for
taking the credit. The parameters are mainly, the goods should be received
in the factory, the goods are utilized in the manufacture of excisable final
product and no dispute regarding payment of duty in respect of such
goods. In the case of the assessee, all the parameters have been fulfilled by
them.
15.2 Further under Rule 9(1) of the Cenvat Credit Rules at Sl. No. ‘C’, the
main document mentioned is “Bill of Entry”. I find that the [said Sl.] of Rule
9(1) does not state that Bill of Entry should not be provisionally assessed or
Bill of Entry should be finally assessed only. From this entry’ at Rule 9(1)
‘C, Bill of Entry whether it is provisional or final is the document on which
credit can be availed by the manufacturer.’ I also find that under Section
2(4) of the Customs Act, Bill of Entry means a Bill of Entry referred to in
Section 46 of the Customs Act and under Section 2(2) assessment includes
provisional assessment, reassessment and any order of assessment in which
duty assessed is ‘Nil’. From the scheme of the Customs Act, when goods
are cleared against a Bill of Entry, the Bill of Entry has to be assessed either
provisionally or finally and provisional assessment is also an assessment
under Section 2(2) of the Customs Act. Goods cannot be cleared from the
Customs unless the Bill of Entry is assessed. Therefore, the entry at Rule
9(1) ‘C’ will include the Bill of Entry either provisionally assessed or finally
assessed.
I find that credit has been taken as per provisions of the law;
- duty as assessed, has been (sic) on inputs
- Documents i.e. Bills of Entry on the basis of which credit has
been taken arc proper and not disputed.
- Goods i.e. inputs have been received in the factory and duly
accounted.
- Inputs have been used in the manufacture of final dutiable
product.
15.3 It is also found that there is no dispute regarding the BCD paid on
the difference of value between provisional and final assessment in terms of
Section 18(2)(n) of the Customs Act, 1962, which was sanctioned in O-I-O
No. 110/DC/SRT/REFUND/2014, dated 29-12-2014 passed by Deputy
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