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TMI Blog2014 (11) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable to the appellants - law has not been read correctly by the adjudicating authority. - Decided in favour of assessee. Cenvat Credit - The duty paid by the appellant is Central Excise duty under Section 3 of the Central Excise Act and not the Customs duties. Section 3 merely provides that the Central Excise duty payable would be aggregate of Customs duty. Therefore, the appellants have correctly utilized the CENVAT Credit in respect of cess of excisable goods towards payment of duty/cess leviable under Section 3 - Following decision of assessee's own previous case [2014 (2) TMI 922 - CESTAT MUMBAI] - Decided in favour of assessee. - Appeal No. E/89071/13 - Final Order No. A/690/2014-WZB/C-II(EB) - Dated:- 12-9-2014 - Ashok Jinda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Additional Duty (SAD) under Section 3(5) of the Customs Tariff Act, 1975. Apart from these duties, Education Cess and Secondary and Higher Education Cess are also leviable. Notification 23/2003 provides the effective rate of duty in respect of goods cleared by EOU into DTA. The table under the Notification is reproduced below:- Sr.No. Chapter or heading No. or sub-heading No. Description of Goods Amount of Duty Conditions 1. Any Chapter All goods Duty of excise leviable thereon as is equivalent to the additional duty of customs leviable on such goods under sub-section (5) of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck transfer. Revenue was of the view that the appellant was not eligible for exemption as no sales tax was paid which was the condition as per Annexure to the Notification. The other issue raised by Revenue was that as per Rule 3(7)(b)(iii)/(iiia) of the Cenvat Credit Rules, 2004, the CENVAT Credit in respect of Education Cess on excisable goods leviable under Section 91/93 of the Finance Act, 1994 and Secondary and Higher Education cess leviable under Section 136/138 of the Finance Act can be utilized only towards payment of education cess on excisable goods whereas the appellant had utilized the CENVAT Credit towards payment of duty leviable on aggregate of Customs duties under proviso to Section 3 of the Central Excise Act, 1944. That is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also relied on the case of Moser Baer India Ltd. v. CCE Noida - 2009 (240) ELT 25 (Tri-Larger Bench of this Tribunal). 6. We have carefully considered the submissions made by both the sides. 7. The core issue is whether the benefit of Notification 23/2003 is allowable or not. To be eligible for exemption from payment of SAD the condition in Notification 23/2003 to be satisfied is .......the goods being cleared into DTA are not exempt by the State Govt. from payment of sales tax or Value Added Tax (VAT). A plain interpretation of this phrase has to be made. In this case it is not disputed that such goods when sold in DTA had not been exempted by the State Govt. by any Notification. We are not required to go into the analysis as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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