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TMI Blog2012 (10) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No.23/2003-CE, dt.01.03.2003. The said 100% EOU was paying education cess and higher education cess CVD, total of CVD and Customs duties and again on duty of Excise equal to aggregate of duties of Customs. The Department entertained a view that the appellant is not eligible for CENVAT Credit of education cess and higher education cess paid on duty of Excise equal to aggregate duties of Customs. Accordingly, a Show Cause Notice dt.30.09.2009 was issued to the appellant, which after due process of law, was adjudicated vide impugned order dt.06.09.2010, wherein the original authority held that the appellant is not eligible for credit of education cess and higher education cess paid by 100% EOU on duty of Excise equal to aggregate duties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 3 of the Excise Act read with serial numbers 3,5, 6 and 7 of notification No. 23/2003-Central Excise, dated the 31st March, 2003, [G.S.R. 266(E), dated the 31st March, 2003] and used in the manufacture of the final products or in providing an output service, in any other place in India, in case the 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 the 31st March, 2003, [G.S.R. 266(E), dated the 31st March, 2003], shall be admissible equivalent to the amount calculated in the following manner, namely:- Fifty 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excise duty referred to in (A), as is equivalent to - (i) the additional duty leviable under sub-section (1) of section 3 of the Customs Tariff Act, which is equal to the duty of excise under clause (a) of sub-section (1) of section 3 of the Excise Act; (ii) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act; and (II) the Education Cess and the Secondary and Higher Education Cess referred to in (B). 5. As can be seen from the Rule, the second proviso providing credit of the full amount of CENVAT Credit of Excise duty paid in respect of clearances made under Notification No.23/2003-CE, dt.31.03.2003 and also allowing the full education cess paid was introduced w.e.f. 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable earlier and if the decision in the case of Emcure Pharmaceuticals Ltd is followed, it is rendering subsequent amendment of the rule by the legislature redundant. He also relies upon the decision in the case of Central Board of Dawoodi Bohra Community to submit that the decision in the case of Emcure Pharmaceuticals Ltd is to be held as per incurium since it is clear that the decision of the Tribunal rendered the amended rule redundant and further it also shows that Emcure Pharmaceuticals Ltd has not considered the statutory provisions properly. 6. Ld.Counsel for the respondents would submit that the settled law is that any decision by a judicial forum should not render the existing law or statutory provision redundant, but no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be clarificatory in nature to have a retrospective effect. In this case, that is not the issue before me. Even before the amendment 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 before me as to whether the benefit of amendment made w.e.f. 07.09.2009, can be extended for the earlier period. The question before me is whether I am required to follow the earlier Tribunal s decisions or not. Therefore, this decision is not clearly applicable. 8. As regards the decision of Hon'ble Supreme Court in the case of Bansal Wire Industries Ltd., the decision was cited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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