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TMI Blog2010 (2) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... , for the Respondent. ORDER These two appeals are filed against the Orders-in-Appeal No. 29/2008 (V-II) CE dated 8-2008 & 7/2009 (V-II) CE dated 27-1-2009, passed by the Commissioner of Central Excise, Customs & Service Tax (Appeals), Visakhapatnam. 2. Heard both sides and perused the records. 3. The issue to be decided in these cases is whether the appellant is eligible to avail Cenvat credit on the entire amount of Education Cess paid on CVD by 100% EOU. The Revenue's contention is that in terms of the Notification No. 23/2003-C.E., dated 31-3-2003, the appellant is entitled to avail Cenvat credit up to 50% of Education Cess paid by a 100% EOU. 4. The learned Consultant appearing on behalf of the appellant submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des the provisions contained in sub-rule (1) and (4) of Rule 3 and, therefore, the only credit available to the appellants in respect of the inputs supplied by EOU will be the amount as specified under the formula given therein. However, this stand is not tenable for the reason that the non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found in the same enactment or some other enactment, and not all provisions contained therein. My view is fortified by the Apex Court's decision in UOI v. G.M. Kokil - (1984) Supp SCC 196, wherein the Apex Court has held as under :- "Section 70, so far as is relevant, says "the provisions of the Fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Act read with Section 70 of the Bombay Shops and Establishments Act, 1948." The above decision has been followed by the larger bench of the Tribunal in Das & Co. v. CCE, 2000 (121) E.L.T. 275, holding that a non obstante clause is used where contrary provisions exist. Similar view has been expressed by the apex court in the case of Jindal Poly Films Ltd. v. CCE, 2006 (198) E.L.T. 3 (S.C.) in the context of the Modvat Rules. Rule 3(1) is applicable to all manufacturers or producers of final products or providers of taxable services including 100% EOU. Rule 3(7)(b) allows utilisation of Cenvat credit by all categories of manufacturers or producers of final products or providers of taxable services, including 100% EOU, in respect of AED fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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