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2012 (10) TMI 870 - AT - Central ExciseCENVAT Credit on education and higher education cess - non eligibility to claim credit on payment made by 100% EOU on duty of Excise equal to aggregate duties of Customs - demand along with interest and equivalent penalty - Held that - Even before the amendment to rules was introduced, the Tribunal had already taken a view that education cess paid in full has to be allowed as CENVAT Credit. It has nothing to do with the amendment. There is neither a request from the assessee nor is the issue as to whether the benefit of amendment made w.e.f. 07.09.2009, can be extended for the earlier period. The decision in the case of EMCURE PHARMACEUTICALS LTD. Versus COMMISSINOR OF C. EX., PUNE 2008 (1) TMI 147 - CESTAT, MUMBAI had considered the statutory provisions in detail and had come to a conclusion and it cannot be said that there were decisions of a higher judicial forum or a provision of law or relevant facts which have been ignored or not considered, despite having been submitted. In such a situation, the decision cannot be said to be per incurium especially when the statute was amended subsequently - against revenue.
Issues:
1. Eligibility for CENVAT Credit of education cess and higher education cess paid by a 100% EOU on duty of Excise equal to aggregate duties of Customs. 2. Applicability of the decision in the case of Emcure Pharmaceuticals Ltd. 3. Interpretation of Rule (7)(a) of CENVAT Credit Rules regarding the admissibility of CENVAT Credit. Issue 1: The main issue in this case was the eligibility of the appellant for CENVAT Credit of education cess and higher education cess paid by a 100% EOU on duty of Excise equal to aggregate duties of Customs. The Department contended that the appellant was not entitled to this credit. A Show Cause Notice was issued, leading to an adjudication confirming the denial of credit and imposing penalties. However, the appeal filed by the assessee was allowed based on the decision in the case of Emcure Pharmaceuticals Ltd, which the Revenue challenged. Issue 2: The Tribunal considered whether the decision in the case of Emcure Pharmaceuticals Ltd was applicable to the present case. The ld.A.R. argued against its applicability, leading to a detailed analysis of the statutory provisions and the arguments presented. The key contention was whether the legislative amendments introduced subsequently affected the admissibility of the CENVAT Credit prior to the amendments. Issue 3: The Tribunal delved into Rule (7)(a) of the CENVAT Credit Rules, focusing on the second proviso introduced w.e.f. 07.09.2009, which provided credit for education cess paid. The ld.A.R. argued that the legislative intent behind introducing the proviso indicated that the credit for education cess prior to 07.09.2009 was not admissible. Various decisions, including Bansal Wire Industries Ltd and Madura Coats Ltd, were cited to support the argument that the Tribunal's decision should not render statutory provisions redundant. The Tribunal ultimately held that the decision in the case of Emcure Pharmaceuticals Ltd was to be followed, as it was applicable to the facts of the case. The arguments presented by the ld.A.R. were not found convincing, and the appeal filed by the Revenue was rejected. The Tribunal emphasized the need to consider the existing law and statutory provisions without rendering them redundant, especially in light of subsequent legislative amendments.
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