Page 232 - ELT_1st August 2020_Vol 373_Part 3

414 EXCISE LAW TIMES [ Vol. 373

Commissioner, Customs Division, Surat in one of the Bill of Entry No. F-
04/13-14, dated 22-4-2013 filed by the assessee.
15.4 In support of the above contention, I rely on the Hon’ble CESTAT,
Mumbai Final Order No. A/l7/2012-WZB/C-II(EB), dated 25-11-2011 in the
case of M/s. Monarch Catalyst Pvt. Ltd. v. CCE, Thane-I, wherein in para 5, the
Hon’ble CESTAT has stated that :
“5. After going through the appeal papers and hearing both sides,
we find that the short question involved in the appeal is whether
the appellants are entitled to avail Cenvat credit of the duty paid on
provisionally assessed. Bill of Entry. Under Rule 9 of the Cenvat
Credit Rules, the documents have specifically been prescribed on
which the credit could be taken by the manufacturer. Under Rule
9(1) of the Cenvat Credit Rules at Sl. No. ‘C’, the main document
mentioned is “Bill of Entry”. We find that the Sl. No. ‘C’ of Rule 9(1)
does not state that Bill of Entry should not be provisionally assessed
or Bill of Entry should be finally assessed. From this entry at Rule
9(1) ‘C, Bill of Entry whether it is provisional or final is the docu-
ment on which credit can be availed by the manufacturer. We 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 un-
der Section 2(2) assessment includes provisional assessment, reas-
sessment 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 as-
sessment under Section 2(2) of the Customs Act. Goods cannot be
cleared from the Customs unless the Bill of Entry is assessed. There-
fore; the entry at Rule 9(l) ‘C’ will include the Bill of Entry either
provisionally assessed or finally assessed. There is no reason to de-
ny the credit to the assessee merely on the ground that Bill of Entry
was provisionally assessed by the Customs authorities. We there-
fore, find no merit in the department s contention that the assessee
is not entitled to the Cenvat credit on the basis of the provisionally
assessed Bill of Entry. We, therefore, set aside the Order-in-Original
passed by the Commissioner and allow the appeal filed by the ap-
pellants.”
15.5 In view of the discussion and findings, I find that there is no reason
to disallow and recover the Cenvat credit of CVD and SAD paid on the
provisionally assessed bills of entry merely on the ground that the assessee
has not claimed refund of the excess payment of CVD and SAD paid on the
provisionally assessed bills of entry value which become due upon the final
assessment of the bills of entry before the proper authority in terms of Sec-
tion 18(2)(a) of the Customs Act, 1962 read with Rule 27(i)(b) of the Cus-
toms Act, 1962.
16. Accordingly, the demand raised in the show cause notice No.
V(Ch.74)03-60’Dem2015-16, dated 29-2-2016 does not sustainable on merits.
17. Since the demand is found to be not maintainable, the question of de-
mand of interest and imposition of penalty does not arise.
18. In view of the above discussion I pass the following order.

EXCISE LAW TIMES  1st August 2020  232