9911796707
TMI Blog2007 (7) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... aid by an 100% EOU. The appellants have purchased inputs from an 100% EOU and availed credit of Education Cess paid by such 100% EOU. It is the contention of the revenue is that the appellant is not eligible to avail Cenvat credit of the Education Cess, which has been paid by the 100% EOU. On the other hand the appellant submits that provisions of Rule 3(7) (a) will be applicable only to Basic Customs Duty and CVD and will not apply to Education Cess. Ld. SDR relies upon the decision of the Hon ble Supreme Court in the case of Benara Valves Ltd., v. CCE as reported at 2006 (204) E.L.T. 513 for the preposition that prima facie case alone is not enough for passing an interim order. -He specifically emphasized that Hon ble - Supreme Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viable under Section 3 of the Customs Tariff Act, equivalent to the duty of excise specified under clauses (i) (ii), (iii), (iv), (v) and (vi); (viia) the additional duty leviable under sub-section (5) of Section 3 of the Customs Tariff Act, as substituted by clause 72 of the Finance Bill, 2005, the clause which has by virtue of the declaration made in the said Finance Bill under the Provisional Collection of Taxes Act, 1931 (16 of 1931), the force of law : Provided that a provider of taxable service shall not be eligible to take credit of such additional duty); (viii) the additional duty of excise, leviable under Section 157 of the Finance Act, 2003 (32 of 2003); (ix) the service tax leviable under Section 66 of the Finance Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Cenvat Credit of additional duty leviable under Section 3 of the Customs Tariff Act on goods falling under heading 9801 of the First Schedule to the Customs Tariff Act. 5. It can be seen from the above reproduced rules that the appellant is eligible to avail the benefit of Cenvat credit. In this case Education Cess is leviable on the excisable goods. On plain reading of the above said Rule, it can be seen that the entire amount of duty paid on such goods, in respect of all types of duties mentioned in the said rules, is permissible as credit to appellant. As against this provisions of Rule 3(7)(a) reads as under :- "Notwithstanding anything contained in sub-rule (1) and sub-rule (4), - (a) Cenvat credit in respect of inputs o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot seem to be correct. The legislature in its own wisdom has allowed Cenvat credit to an assessee on the duties paid by a supplier of the inputs in order to reduce cascading effect of the duty. To my mind the provisions of Rule 3(7)(a) does not restrict the credit of excise duty paid on BCD and CVD as worked out. 7. As regards the decision relied upon by the ld. SDR, I find that Hon'ble Supreme Court in para 8 has held as under :- It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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