2019 (7) TMI 1937 - AT - Central Excise

Utilization of credit of basic excise duty for payment of Education Cess And Secondary Higher Education Cess - area based exemption under Notification no. 39/2001-CE availed - HELD THAT - The issue that whether the credit of basic excise duty can be utilized for payment of Education Cess and Secondary Higher Education Cess when the appellant availed the area based the Exemption Notification No. 39/2001-CE has been decided in the case of M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI 2017 (11) TMI 655 - SUPREME COURT where it was held that The appellants were entitled to refund of Education Cess and Higher Education Cess which was paid along with excise duty once the excise duty itself was exempted from levy. The issue is no longer res-Integra accordingly the appellant are entitled for utilization of credit of basic excise duty for payment of Education Cess and Secondary Higher Education Cess - Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
Whether the appellant can utilize credit of basic excise duty for payment of Education Cess And Secondary & Higher Education Cess under Exemption Notification no. 39/2001-CE which is area-based exemption.

Analysis:
The issue in this case revolved around the utilization of credit of basic excise duty for payment of Education Cess And Secondary & Higher Education Cess by the appellant under an area-based exemption notification. The appellant argued that this issue had been settled in the case of SRD Nutrients Private Limited and cited other relevant judgments for support. The Ld. Counsel for the appellant referred to the case of Rama Cylinders Pvt. Ltd-2016 (339) E.L.T 147 (Tri.-Ahmd.) and In RE: Welspun Corporation Ltd.-2014 (314) E.L.T. 968 (G.O.I.) to strengthen their position.

The Ld. Assistant Commissioner (AR) representing the Revenue reiterated the findings of the impugned order. After hearing both sides and examining the records, the Tribunal found that the issue had already been decided in the case of SRD Nutrients Private Limited. The Tribunal also mentioned that the Hon'ble Supreme Court in the case of Hitachi Home Vs. Commissioner had disposed of an appeal by relying on the judgment in the case of SRD Nutrients Private Limited. The Tribunal further noted that this issue had been considered in the case of Rama Cylinders Pvt. Ltd as well.

Based on the judgments cited, the Tribunal concluded that the issue was no longer res-Integra, and therefore, the appellant was entitled to utilize the credit of basic excise duty for payment of Education Cess and Secondary & Higher Education Cess. Consequently, the impugned order was deemed unsustainable and set aside, leading to the allowance of the appeals. The decision was dictated and pronounced in the open court by the Tribunal.