9911796707
TMI Blog2011 (4) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... rity disallowed the credit availed on Educational Cess and S & H. E. Cess. On appeal by the assessee, the Commissioner (Appeals) set aside the Order-in-Original and allowed the credit. The present appeal is filed by the Revenue against this order. 2. The issue to be decided in the present case is whether Education Cess and S & H.E. Cess paid by 100% EOU can be taken as credit in full by the recipient manufacturing unit or it has to be limited to the extent determined by the formula provided in Rule 3(7)(a) of Cenvat Credit Rules, 2004. The department was of the view that the said formula would apply to both the types of Education Cess also whereas the appellants contended that the restriction regarding availment of Credit (as per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifty per cent. of [X multiplied by {(1+BCD/100) multiplied by (CVD/100)}], where BCD and CVD denote ad valorem rates, in per cent., of basic customs duty and additional duty of customs leviable on the inputs or the capital goods respectively and X denotes the assessable value: Provided that the CENVAT credit in respect of inputs and capital goods cleared on or after 1st March, 2006 from an export oriented undertaking or by a unit in Electronic Hardware Technology Park or in a Software Technology Park, as the case may be, on which such unit pays excise duty under section 3 of the Excise Act read with serial number 2 of the notification no. 23/2003-Central Excise dated 31st March, 2003 [G.S.R. 266(E), dated the 31st March, 2003] shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efers to the Finance Act under which education cess is levied. From this, it appears that the objective of the legislature was to restrict availment of credit of BED paid by an EOU and not to restrict availment of credit of other duties leviable under the Finance Act, 1944 (Education Cess) and National Calamity Contingent Duty Act and Additional Duties of Excise (Textile and Textiles Articles) Act, etc. 6.?According to the Revenue, since Rule 3(7)(a) begins with a non-obstante clause, it overrides the provisions contained in sub-rule (1) and (4) of Rule 3 and, therefore, the only credit available to the appellants in respect of the inputs supplied by EOU will be the amount as specified under the formula given therein. However, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the non-obstante clause the Act is applicable even to employees in the factory who might not be workers under Section 2(1), the same non-obstante clause will keep away the applicability of exemption provisions qua all those working in the factory. The Labour Court, in our view, was, therefore, right in taking the view that because of the non-obstante clause Section 64 read with Rule 100 itself would not apply to the respondents and they would be entitled to claim overtime wages under Section 59 of that Act read with Section 70 of the Bombay Shops and Establishments Act, 1948. 5. Also as per the order of the CESTAT in the case of Shreya Pets Pvt. Ltd. Vs. CCE Hyderabad reported in 2009 (240) ELT 408 (Tri. Bang.) the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
