2018 (10) TMI 1534 - AT - Central Excise

CENVAT Credit - inputs procured from 100% EOU - Payment of education cess/ higher education cess third time - credit paid by the appellant on education cess/ higher education cess sought to be denied on the ground that the supplier of goods was not required to pay duty on the said goods - Held that - Similar issue came up before this Tribunal in the case of Polypack Industries vs. CCE, Belgaum 2013 (8) TMI 956 - CESTAT BANGALORE , wherein it has been held that third time cess which is payable according to the department on the ground that what is required to pay by 100% EOU is Excise duty and total Excise duty arising only after the calculation of equal amount of custom duty. If third time education cess is considered as levy of the total excise duty, therefore credit is admissible to the appellant. The appellant is entitle to avail the Cenvat credit on third time education cess paid by them on inputs procured from 100% EOU - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Denial of Cenvat credit on education cess/higher education cess.
2. Eligibility of the appellant for Cenvat credit on education cess paid.

Issue 1: Denial of Cenvat credit on education cess/higher education cess:
The appellant appealed against orders denying Cenvat credit on education cess/higher education cess, arguing that the supplier was not required to pay duty on the goods, hence the third-time cess payment was not applicable. The Tribunal referred to previous cases like Polypack Industries and M/s Texbond Nonwovens, where it was held that if the third-time education cess is considered part of the total excise duty, credit should be allowed to the appellant. The Tribunal emphasized that what matters under CCR is the payment of excise duty or education cess specified under Rule 3, not whether it is payable or not. The Tribunal found no grounds to reject the credit, as lower authorities did not provide any valid reasons for denial.

Issue 2: Eligibility of the appellant for Cenvat credit on education cess paid:
The Tribunal analyzed the appellant's eligibility for Cenvat credit on education cess paid. Referring to the case of Emcure Pharmaceuticals Ltd., it was observed that Rule 3(7)(a) restricts credit availment for EOU inputs to basic excise duty only, not other duties like education cess. The Tribunal rejected the Revenue's argument that Rule 3(7)(a) overrides other provisions, citing legal precedents on non obstante clauses. It was concluded that the appellant was entitled to avail Cenvat credit on education cess paid, and the demands against the appellant were set aside. The Tribunal held that the appellant could claim Cenvat credit on third-time education cess paid on inputs from 100% EOU, allowing the appeals and providing consequential relief.

In summary, the Tribunal ruled in favor of the appellant, allowing Cenvat credit on education cess paid and rejecting the denial of credit based on the supplier's duty payment status. The judgment highlighted the importance of interpreting rules and precedents to determine credit eligibility, ultimately setting aside the demands against the appellant.