2010 (2) TMI 231 - AT - Service Tax

Cenvat Credit- Appellant paid Education Cess for utilizing the Cenvat Credit of basic excise duty available in the Cenvat credit account. Consequently, duty was demanded and penalty was imposed. On an appeal filed by the respondent, the Commissioner (Appeals) allowed the appeal and hence the Revenue is in appeal. Held that- the decision in case of M/s Sun Pharmaceuticals, Vs. CCE 2006 (9) TMI 44 - CESTAT, NEW DELHI, I find that the appeal has no merit and accordingly reject the same.

Summary

Issues:
- Appeal against demand of duty and penalty for payment of Education Cess utilizing Cenvat Credit.
- Commissioner (Appeals) allowing the appeal.
- Revenue's appeal against the Commissioner's decision.
- Interpretation of Rule 3(7)(b) of Cenvat Credit Rules.
- Tribunal's decision in M/s Sun Pharmaceutical Vs. CCE.
- Tribunal's decision in CCE Vapi Vs. M/s Balaji Industries.

Analysis:
1. The appellant paid Education Cess using Cenvat Credit of basic excise duty, leading to a demand for duty and imposition of penalty. The Commissioner (Appeals) allowed the appeal, prompting the Revenue to file an appeal. The Revenue argued that the Commissioner relied on a Tribunal decision in M/s Sun Pharmaceutical Vs. CCE, which is under appeal and hence should not have been considered. Additionally, the Revenue cited Rule 3(7)(b) of Cenvat Credit Rules to support its stance that education cess should only be paid from the education cess credit account.

2. The Tribunal, per the judgment in CCE Vapi Vs. M/s Balaji Industries, had previously allowed utilizing credit of basic excise duty for paying education cess. The Tribunal noted that there were subsequent decisions post the M/s Sun Pharmaceutical case supporting a similar view. The Revenue failed to provide a copy of the stay order related to the M/s Sun Pharmaceutical case. Consequently, the Tribunal found that the issue had already been settled by its subsequent decisions and upheld the Commissioner's decision, rejecting the Revenue's appeal.

This judgment clarifies the permissible use of Cenvat Credit for paying Education Cess, highlighting the Tribunal's consistent stance on the matter and emphasizing the importance of relevant precedents in deciding such cases.