ORDER
Archana Wadhwa
1. Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeal.
2. The original Adjudicating authority had denied the benefit of Modvat credit of C.V. duty of Rs.35,169.00 availed by the respondents on the triplicate copy of the Bill of Entry on the ground that the said Bill of Entry was not showing the details of payment of the C.V. duty. On an appeal against the above order the Commissioner (Appeals) observed that Bill of Entry showed a consolidated amount of basic customs duty, special customs duty and C.V. duty having been paid by the respondents. The respondents gave the break-up of these amounts and also contended that the entire amounts of duty was paid thorough Pass-Book under DEPB Scheme. The Commissioner(Appeals) after considering the said submission of the respondents observed as under:
“On a perusal of the Triplicate copy (original) of the Bill of Entry I find that the goods were deposited in CWC on 16.3.96 after assessment by the Customs House, Madras. The goods were cleared from the CWC on 19.7.96 – which means duty was paid on 19.6.96.Though the pass book was not produced before me, it is a fact that CWC will not, can not allow clearance (i.e. ex-bond) without payment of full duty as already assessesed by the Customs House. At any rate, this is not the point raised by the Assistant Commissioner.
However, the applicant will produce the relevant pass book – as proof of payment of duty, and the Assistant Commissioner will allow credit without rasing any further doubts.”
With above observations the matter was sent back to the Assistant Commissioner for verification of the relevant pass book.
3. The Revenue in their memo. of appeal has challenged the above order of the commissioner (Appeals) on the following grounds:
1. As per CBEC’s D.O.F. No. 207/36/98-CE-6 dt.15.2.96 where goods imported under DEPB Scheme, Modvat can be taken only if additional duty is paid in cash. The debiting of the DEPB books does not amount to payment of duty.
2. In terms of para-7.41 of Chapter 7 of New Import-Export Policy 1997-2002 Modvat credit can be availed in respect of additional duty paid in cash. In the instant case the assessee imported Cylinder body and Piston Rings Kits and Coil Spring falling under sub-heading No.8479.00 and 7326.00 respectively and paid the entire amount of C.V. duty through pass book scheme.
4. I find that the above grounds were not taken either before Commissioner (Appeals) or before the original Adjudicating authority. As such their opinion as regards the legal issue that is when the CV duty is paid not in cash but by debiting the DEPB book can be availed of as Modvat credit, are not available. Accordingly, I set aside the impugned order of the Commissioner (Appeals) and remand the matter to the original Adjudicating authority for looking into the said aspects. Appeal of the Revenue is allowed by way of remand.
(Pronounced in Court)
