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TMI Blog2015 (3) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... of excise. The Rule 3(7)(b) of Cenvat Credit Rules, 2004 put restriction in regard to utilization of Cenvat credit availed in respect of Education Cess and SHE Cess paid on inputs. The provisions relating to utilization of basic excise duty credit contained in Rule 3(4) of said rules does not put any restriction on utilization of said credit for payment of Education Cess/SHE Cess leviable as per provisions of relevant Finance Acts. This point is further clarified in para 2.4.2 of Chapter 5 of C.B.E. & C. Excise Manual on Supplementary Instructions which clearly stipulate that there is no restriction on utilization of credit of duties other than the restriction as envisaged in Rule 3(7)(b) of Cenvat Credit Rules, 2004. Plain reading of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Education Cess and Secondary Higher Education Cess payable on clearance of finished goods. Therefore the adjudicating authority vide rebate order No. 213/2010-11, dated 28-6-2010 rejected the claim for the amount of ₹ 19,15,834/- and sanctioned the rest of the rebate claim. The assessee has also filed rebate claim of ₹ 4,14,60,932/- on account of duty paid on goods exported. The adjudicating authority noticed that the assessee, during March 2010 has utilized Cenvat Credit of Basic Central Excise duty of ₹ 14,54,711/- against payment of Education Cess and Secondary Higher Education Cess payable on clearance of finished goods. Therefore the adjudicating authority vide rebate order No. 215/2010-11, dated 28-6-2010 reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 and Section 138 of Finance Act, 2007, the 2% Education Cess and 1% Secondary Higher Education Cess are duty of Excise leviable and collected as per the provisions of Central Excise Act, 1944 and rules made thereunder. The contention of the appellate authority is not tenable since duty as defined in Rule 2(e) of the Central Excise Rules, 2002 means the duty payable under Section 3 of the Act. Similar view was taken by the Hon ble Supreme Court in the case of Union of India and Others v. Modi Rubber Limited and Others, reported in 1986 (25) E.L.T. 849 (S.C.). Further, Education Cess and Secondary Higher Education Cess are levied in the statute different from the Central Excise Act, 1944. Both the statutes are self contained enactments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in balance under the head of basic excise duty availed either on input or capital goods by the assessee concerned towards payment of education cesses payable on their finished goods was not appropriate and therefore the adjudicating authority has rightly restricted the rebate claim of such amount. 5. A show cause notice was issued to the respondent under Section 35EE of the Central Excise Act, 1944 for filing of the counter reply. The respondent vide their written submission dated 7-5-2011 mainly reiterated contents of impugned Orders-in-Appeal. 6. Personal hearing scheduled in this case on 9-8-2012 was attended by Shri Kishor Kunal, Advocate on behalf of the respondent who stated that Order- in-Appeal being legal and proper, may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss on excisable goods or for the payment of the education cess on taxable services. (iii) Para 2.4.2 of Chapter 5 of C.B.E. C. Excise Manual on Supplementary Instructions dealing with the restrictions on utilization of credit reads as under :- There are certain restrictions on utilization of Cenvat Credit of different duties . It has however been provided that the credit of Education Cess on excisable goods and the Education Cess on taxable services can be utilized either for payment of Education Cess on excisable goods or for payment of the Education Cess on taxable services. .. There is no restriction on utilization of credit of duties other than mentioned above. 8.2 Government not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 3(7) limits the utilization of Cenvat credit in respect of NCC duty as also other duties mentioned in Rule 3(7)(b). It provides that Cenvat credit in respect of NCC duty and other duties shall be utilized towards payment of duty of excise leviable under various statutes respectively. The use of word respectively in this regard is important inasmuch as it confined to the utilization for payment of duty under that statute only. The converse, however, does not follow. That is to say that merely because Cenvat credit in respect of NCC duty can be utilized only for payment of NCC duty, it does not follow that any other credit of duty cannot be utilized for payment of NCC duty. Under the circumstances, the second part of the substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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