2009 (4) TMI 310 - AT - Central Excise

Restriction to avail credit of 50% of duty whether covers education cess - Sub-rule 2(a) of Rule 4 of Cenvat Credit Rules, 2004 (CCR) lays down that on receipt of capital goods in a factory, Cenvat credit shall be taken for an amount not exceeding 50% of the duty paid on such capital goods in the same financial year. - M/s. DCW Ltd availed in 2005-06, 50% of the duty and the entire education cess paid on capital goods received, on the plea that the restriction in the sub-rule applied only to duty of excise; restriction did not cover education cess - As per Clause 93 of the Finance Act, 2004, education cess shall be a duty of excise. - In the circumstances, I hold that the restriction envisaged in the sub-rule (4) of CCR encompasses also the Cenvat credit of education cess admissible to the assessee on receipt of the capital goods. In year of receipt, full credit of education cess cannot be taken

Summary

Issues: Interpretation of sub-rule 2(a) of Rule 4 of Cenvat Credit Rules, 2004 regarding availment of education cess credit on capital goods.

Analysis:
1. The appellant, M/s. DCW Ltd, availed 50% of the duty and the entire education cess paid on capital goods received in 2005-06, arguing that the restriction in sub-rule 2(a) of Rule 4 of CCR applied only to duty of excise, not education cess.
2. The original authority alleged irregular availment of education cess credit amounting to Rs. 2,68,547/- and demanded the excess credit along with interest.
3. The Commissioner (Appeals) found that education cess imposed under the Finance Act, 2004 was considered a duty of excise, and thus, the restriction in sub-rule 2(a) of Rule 4 of CCR applied to education cess as well.

Analysis:
1. The Cenvat Credit Rules, 2004 state that credit for capital goods received in a factory should not exceed 50% of the duty paid on such goods in the same financial year.
2. The appellant argued that the term "duty" in the rule did not cover education cess, while the authorities contended that education cess was included as a duty of excise.
3. The Tribunal analyzed the Cenvat scheme and concluded that education cess is considered a duty of excise under Clause 93 of the Finance Act, 2004.
4. The Tribunal held that the restriction in sub-rule 2(a) of Rule 4 of CCR applies to education cess credit as well, and the appellant cannot avail the full credit of education cess in the year of receiving the capital goods.
5. Consequently, the impugned order was upheld, and the appeal filed by M/s. DCW Ltd was dismissed, along with the stay application.

This detailed analysis of the judgment provides a comprehensive understanding of the interpretation of the Cenvat Credit Rules, 2004 concerning the availment of education cess credit on capital goods.