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TMI Blog2013 (9) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... goods as per the provisions of Cenvat credit Rules, 2004. The inputs received were the DTA clearances of a 100% EOU. According to the appellant, in respect of inputs received by them from the 100% EOU, the duty had been paid under proviso to Section 3(1)of the Central Excise Act, 1944 read with S.No.1 of table annexed to Notification No. 23/03-CE dated 13.1.03 under which the rate of duty payable on the DTA clearance is the aggregate of duties of Customs and the special Additional Customs Duty leviable under Section 3A of Customs Tariff Act is exempt subject to fulfilment of the condition, which in this case has been fulfilled. The appellant had taken Cenvat credit of the Additional Customs duty component plus education cess of the total du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellant, pleaded that the inputs received by the appellant from 100% EOU have suffered duty under S.No.1 of Notification No. 23/03-CE and not under S.No.2 and as such the duty suffered on goods is basic customs duty plus additional customs duty plus education cess; that the appellant have confined the Cenvat credit availment only to the additional Customs duty component, and education cess and secondary and higher education cess (S & H cess), that the provisions of Rule 3(7)(a) prescribing a formula for determining Cenvat credit available in respect of inputs received from a 100% EOU are applicable only when the inputs received, from a 100 EOU have suffered duty under S.No.2 of the Notification No. 23/2003, as all the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given any finding on the appellant's plea that inputs, in question, had suffered duty under S.No. 1 of the table annexed to Notification 23/03-CE and have gone by the presumption that in respect of the inputs received by the Appellant from 100% EOU, the Cenvat credit would be restricted in terms of the formula prescribed under Rule 3(7)(a). The basic question to be decided in this case is as to whether the provisions of Rule 3(7)(a) restricting the availment of Cenvat credit as per formula prescribed would be applicable, in respect of inputs received from a 100% EOU when the inputs received from the 100% EOU have suffered duty under S. No. 1 of the table to the Notification No. 23/2003. 6. Rule 3(7)(a) is reproduced below: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serial number 2 of the notification no. 23/2003 -Central Excise, dated 31st March, 2003 [GSR. 266(E), dated the 31st March, 2003] shad be equal to {X multiplied by [(1+BCD/200) multiplied by (CVD/100)]}. Provided further that the CENVAT credit in respect of inputs and capital goods cleared on or after the 7th September, 2009 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 undertaking or unit has paid - (A) excise duty leviable 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 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restricting, the Cenvat credit availment have been changed with every amendment to notification No. 23/03-CE changing the effective rate of duty in S. No. 2 of the table to the notification. 7.1 The effective rate of duty prescribed in S. No.2 of the table to the notification No. 23/03-CE during different periods and the formulas restricting the Cenvat credit in Rule 3 (7) (a) during there periods are as under:- Period Rate of duty prescribed in S. No. 2 of the table to notification No 23/03-CE Formula restricting the Cenvat credit prescribed is rule 3 (7) (a) Period prior to 01.03.2006 50% of duty leviable under sec. 3 of Central Excise Act, 1944 i.e. 50% of (XBCD/100)+x(1+BCD/100)(1+CVD/100) 50% of X multiplied by (1+BCD/100) m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 100% EOU paying duty under S. No. 2 of the table to the notification No. 23/03-CE has basic Customs duty component also, the Cenvat credit available is confined only to the component comprising of Additional Customs duty (also called contravailing duty). Therefore on this basis, it can be said that though Rule 3(7)(a) does not mention any formula restricting, the credit, when the inputs received from a 100% EOU have suffered duty under S. No. 1 of the table to the notification No 23/03-CE i.e. duty paid on the goods is basic customs duty plus Additional Customs duty plus sp. additional customs duty if any payable plus education cess and S & H cess payable under section 93 of Finance Act, 2004 & Section 138 of Finance Act 2007 respectivel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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