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TMI Blog2015 (6) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... ant have not been able to establish a prima facie case in their favour. - Partial stay granted. - Excise Stay Application E/Stay/54040/2014, Excise Appeal No.E/53620/2014-Ex[DB] - Final Order No. SO/A/51539/2015 - Dated:- 21-4-2015 - Mr Rakesh Kumar, Member (T) And Mr S K Mohanty, Member (J),JJ. For the Appellant : Mr Mayak Garg, Adv. For the Respondent : Mr Ranjan Khanna ORDER Per: Rakesh Kumar: The appellant are manufactures of Cement and cement klinker. The appellant during period from September 2010 to April 2011 had received Kemrock Pultruded Shapes from a 100% EOU. Instead of confining the cenvat credit to the amount as specified in 2nd proviso to Rule 3(7)(a) of the Cenvat credit Rules 2004, the appellant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anna, Ld. DR opposed the stay application by reiterating the findings of the Commissioner (Appeals) and cited the judgment of the Tribunal in the case of SMV Beverages vs CCE Nagpur reported in 2011 (263) ELT 467 (Tri. Mum), Sh. Khanna also pleaded that the Tribunal's judgment in the case of Metaclads vs CCE (supra) cited by the Ld. Counsel of the Appellant is not applicable to this case, as the dispute in case of Metaclads vs CCE (supra) was regarding admissibility of the cenvat credit of the special additional customs duty paid under section 3(5) of the Customs Tariff Act 1975 in respect of the DTA clearances and as such there was no dispute in respect of availability of cenvat credit of the basic customs duty portion of the central e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Act 1975; and (c) The Education cess and secondary and higher education cess. 6.1 Thus, in terms of this proviso, though the excise duty paid by the 100% EOU on its DTA clearances, has a basic custom duty component also, the cenvat credit is admissible only of the Additional Customs Duty portion payable on the goods under section 3(1) of the Customs Tariff Act, 1975 plus the special additional customs duty payable under section 3(5) of the Customs Tariff Act and Secondary and Higher Education Cess. Thus the DTA unit would not be entitled for the cenvat credit of the basic custom duty. Thus, the appellant have not been able to establish a prima facie case in their favour. They are, therefore, directed to deposit an amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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