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2024 (5) TMI 4 - CESTAT CHENNAIRecovery of wrongly utilized credit - utilization of Cenvat Credit availed on Basic Excise Duty (BED) for payment of EC and SHEC - violation of Rule 3 (7)(b) of Cenvat Credit Rules, 2004 - Period between April 2013 and January 2014 - HELD THAT:- The very same issue was considered by Tribunal in the case of M/S. VEDANTA LTD. VERSUS CCE, TIRUNELVELI [2018 (7) TMI 158 - CESTAT CHENNAI] and the Tribunal held that the demand confirmed alleging that the appellant cannot utilize the credit availed on Basic Excise Duty for discharging Education Cess and Secondary Higher Education Cess cannot be sustained. In the said case the Tribunal followed various decisions in which Rule 3 (7)(b) of Cenvat Credit Rule was also analysed. In the case of COMMISSIONER OF C. EXCISE, DIBRUGARH VERSUS PRAG BOSIMI SYNTHETICS LTD. [2013 (11) TMI 487 - GAUHATI HIGH COURT], the Hon’ble Guwahati High Court considered the issue in detail as to whether National Calamity Contingent Duty (NCCD) is a duty exempted under Notification No.32/99 - CE dated 08.07.1999 and if not whether CENVAT credit availed under Cenvat Credit Rules, 2004 can be utilized for payment of such duty which is not exempted under such Notification - Hon’ble High Court held that NCCD is nothing but a duty of Excise and in para 8 of the said judgment the question whether the CENVAT credit can be utilized for payment of NCCD was discussed and held in favour of assessee. The Hon’ble Supreme Court in the case Unicorn Industries [2019 (12) TMI 286 - SUPREME COURT] has observed that ‘the duty on NCCD, Education Cess and Secondary Higher Education Cess are in the nature of additional Excise duty and it would not mean that the area based exemption Notification dated 09.09.2003 would be applicable to these duties (NCCD), particularly, when there is no reference to the Notification issued under Finance Act 2001. The Hon’ble jurisdictional High Court had considered the decision in the case of M/s, Unicorn Industries also to reach the conclusion that Cess being duty of excise the importer can pay Cess using MEIS Scrips. From the above, there are no hesitation to hold that the decision of the Tribunal in the case of M/s. Vedanta Ltd. is squarely applicable. The demand therefore cannot be sustained. The impugned order is set aside. The appeal is allowed.
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