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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 ..... . Welspun Corporation Ltd., Anjar (Kutch) has filed rebate claim of Rs. 1,45,57,364/- on account of duty paid on goods exported. The adjudicating authority noticed that the assessee, during February 2010 has utilized Cenvat Credit of Basic Central Excise duty of Rs. 19,15,834/- against payment of 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 Rs. 19,15,834/- and sanctioned the rest of the rebate claim. The assessee has also filed rebate claim of Rs. 4,14,60,932/- on account of duty paid on goods exported. The adjudicating authority noticed that the assessee, during March 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Finance Act, 2004 and Section 138(3) of Finance Act, 2007, the provisions of Central Excise Act, 1944 and rules made thereunder shall apply for levy and collection of 2% Education Cess and 1% Secondary & Higher Education Cess. Thus it is clear that as per Section 83 of Finance Act, 2004 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (e) of the Central Excise Rules, 2002. 4.3 Further, education cesses are not levied in the same way and treated as Central Excise duties which are levied through different schedules to the Central Excise Tariff Act, 1985. Therefore, it appears that utilization of Cenvat credit amount lying 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 resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit may be utilized for payment of - (a) any duty of excise on any final product, or ..................... .............................................................................. (ii) Rule 3(7)(b) of Cenvat Credit Rules, 2004 :- "provided that the credit of the education cess on excisable goods and education cess on taxable services can be utilized, either for payment of the education cess 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 :- &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rified 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. 8.3 Hon'ble High Court of Guwahati vide order dated 1-7-2011 in the case of CCE, Dibrugarh v. M/s. Prag Bosimi Synthetics Ltd., Assam [2013 (295) E.L.T. 682 (Gau.)] has held that BED credit could be utilized for payment of NCCD which is a similar levy to Education Cess/SHE Cess. The operative portion of above order is reproduced below :- "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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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