ORDER
P.G. Chacko, Member (J)
1. The present application is against denial of Cenvat credit of over Rs. 52.00 lakhs and demand of Education Cess of over Rs. 1.00 lakh as also against penalty of Rs. 25.00 lakhs. After examining the records and hearing both sides, we note that, under Customs Notification No. 96/2004 dated 17-9-2004, as clarified by the Ministry in Circular No. 59/2004-Cus. dated 21-10-2004, the appellants were entitled to take Cenvat credit of CVD paid through debit in DEPB scrip. Learned Commissioner in the impugned order did not allow such credit on the ground that Cenvat Credit Rules did not permit the same. We note that this aspect was also examined by the Ministry in certain subsequent circulars, one of which is Circular No. 27/2006-Cus. dated 13-10-2006, wherein, after consulting Law Ministry, it was held that amendment to the Cenvat Credit Rules was not required for allowing credits of the above nature. Apparently, the circulars read with the above Notification would clinch the issue in favour of the appellants inasmuch as the credit in question was availed after October 2004 under the new Foreign Trade Policy. Accordingly, there will be waiver of pre-deposit and stay of recovery in respect of the above amounts.
(Dictated and pronounced in open Court)
