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TMI Blog2010 (1) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... = st2 /> Shri I. Baig, SDR, for the Appellant. Shri Atul Gupta, Co. Secretary, for the Respondent. [Order]. - This is an appeal by the Department against the order of the Commissioner (Appeals) No. 331 (MPM)/CE/JPR-I/04 dated 18-10-2004. Cross objection No. CO/60/05-SM is connected to this appeal. 2. Heard both sides. 3. The respondent is a manufacturer of Bottles/Jars/Pre-form of Bottles/Jars of Polyethylene Terephthalate etc. and some quantity of Pet packing resin. They procured the same from 100% EOU. The duty payable on the clearances made from 100% EOU is based on Customs Tariff. But for the exemption under Notification No. 2/95-C.E., dated 4-1-95, the consignment received by them should have paid a duty of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fairly submits that the Commissioner (Appeals) setting aside the entire demand of Rs. 1,08,660/- was wrong. The respondents are eligible for a credit of Rs. 45,080/-, which is equal to the amount of duty payable, if they have procured the similar goods from DTA source. He submits that in respect of the goods cleared from 100% EOU, the entire duty paid is only Central Excise duty even though the same is calculated as equivalent of customs duty as if the goods were imported and 50% of the said amount is charged in view of the Notification No. 2/95-C.E., dated 4-1-95. He submits that the Cenvat Credit Rules, 2001 is a liberalisation over the Notification No. 5/94-C.E. insofar as the same relates to extent of Modvat credit available on the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No. 2/95; after ascertaining these two elements the Modvat credit has to be allowed to the manufacturer on the basis of the first proviso to Notification No. 5/94-C.E. As per first proviso to this notification credit shall be restricted to the extent of duty which is equal to the additional duty leviable on like goods. If the additional duty is less than the actual duty paid on the inputs cleared from 100% E.O.U, the manufacturer in India shall be eligible only for the credit equivalent to the additional customs duty. On the other hand if the duty actually paid by 100% E.O.U. on inputs cleared by them is less than the additional duty of customs payable on like goods the manufacturer shall be eligible only to the extent of actual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking or by a unit in an Electronic Hardware Technology Park and used in the manufacture of final products in any place in India, shall be restricted to the extent of duty which is equal to the additional duty leviable on like goods under Section 3 of the Customs Tariff Act, 1975 (51 of 1975), equivalent to the duties of excise specified under (i) and (ii) above paid on such inputs, 6.3 With reference to the above restrictions, the decision of the Larger Bench in the case of Vikram Ispat cited supra has been rendered. The provisions relating to restriction of Cenvat credit relating to inputs received from 100% EOU in Cenvat Credit Rules, 2001 reads as under :- "(6) Notwithstanding anything contained in sub-rule (1), — (i) in a free ..... X X X X Extracts X X X X X X X X Extracts X X X X
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